Alert

The 13 November 2015 Paris Attacks have reinforced European and USA anti-refugee sentiment.

Jason Buzi, a San Francisco real-estate billionaire, has proposed a “radical solution” to the world’s crisis of refugees who have nowhere to call home: simply create a “Refugee Nation”, new country for refugees to live in.

Two objections to Refugee Nation:
States may sell territory, but they don’t and won’t sell sovereignty.
The Nation might become a dumping ground or prison camp for refugees.

As to the first objection, one century after the 1919 Versailles Treaty, we can return to the 1803 Louisiana and the 1867 Alaska examples.

As to the prison-camp objection, what about Greece in early December 2015? Is that not also a prison camp? If Schengen collapses and the Refugee Nation is established in a European enclave as proposed by RT, refugees would not be worse off than Caucasians.

I do immediately concede that more thinking is required about those two objections, about those two quite fundamental problems that make the Refugee Nation model unworkable in its present form, especially about the second objection.

OUT OF THE NUTSHELL

There are 59.5 million people around the world who have been forcibly displaced from their homes, too many of whom live in desperate poverty.

The refugee crisis has triggered political panic in Europe because two migrants who entered the European Union (EU) through Turkey and the Greek island of Leros were involved in the 13 November 2015 Paris Attacks.

At a EU Summit in Brussels on Sunday 29 November 2015, Turkey promised to help stem the flow of migrants from the Turkish shores into the Greek islands in return for cash, visas and renewed talks on joining the EU in a deal struck that the Turkish prime minister called a “new beginning” for the uneasy neighbours. The only problem is that asylum seekers cannot be recognised as refugee in Turkey, due to the fact that Ankara, the capital of Turkey, has introduced a so-called “temporary protection” system, which does not stipulate that the refugees receive a reliable legal status. (1)

The deal offers visa-free travel for Turk citizens throughout the Schengen zone, the passport-free travel zone established in 1985, by October 2016, but if the deal fails, said zone will not survive. If the zone does not survive – until October 2016 – , what’s the use of having the right of free travel throughout the zone?

The Guardian reported on 26 November 2015 that France has sought a derogation from the European Convention on Human Rights for the duration of the state of emergency which it decreed after the Paris Attacks and that human rights groups have warned that this state of emergency could lead to abuses and must be closely monitored. Instances of armed police breaking down front doors with battering rams in the middle of the night, searching homes, handcuffing residents and placing people under house arrest without warrants or judicial oversight have multiplied in the two weeks since the Paris attacks that killed 130 people and injured more than 300. (2)

Will the inhabitants of France soon be forced to flee the territory of the republic and seek asylum outside that territory?

The authoritarian tendencies of Turkish president Recep Tayyip Erdogan,
who on 24 November 2015 shot down a Russian plane
(to protect supplies of oil from the Islamic State of Iraq and the Levant (ISIL),
said Vladimir Putin, president of the Russian Federation which is not a EU member, on 30 November 2015,
Russia’s defence ministry adding on 02 December 2015 it had proof that Erdogan and his family were benefiting from the illegal smuggling of oil stolen from its rightful owners in ISIL-held territory in Syria and Iraq),
made some EU members reluctant to bow too deeply to Turkey as there are serious concerns about Erdogan government’s respect for democracy and the rule of law. But the EU leaders would have had no other choices but to agree to the 29 November 2015 deal.

I said in my 21 September 2015 post “Open Borders, now! – Syrian migrants do not qualify for refugee status” that persons fleeing war are not recognised as what in popular speech is called “political refugees” but are tolerated by some Leviathans on humanitarian grounds. It is true that the Convention definition of refugee has been expanded and that these developments are indicative of a widening of the circumstances in which persons may be said to be in need of international protection, but the developments do not constitute formal amendments to the Convention definition.

And I went on to say that for applicants to the status of “humanitarian refugees”, i.e., “non-UN-Refugee-Convention refugees” or “extra-UN-Refugee Convention refugees”, to be assimilated to and thus to be treated in a similar way as applicants to UN-Refugee-Convention status, it is required that the persons to whom this similar treatment would be accorded are first classified as applicants to humanitarian refugee status and even Germany is no longer accepting this consequence of this classification. I now add that neither will French asylum seekers qualify for refugee status.

In order to find an answer to the problem of the 59.5 million people around the world who have been forcibly displaced from their homes, too many of whom live in desperate poverty, Jason Buzi, a San Francisco real-estate billionaire, has proposed this summer (end of July 2015) what he calls a “radical solution” to the world’s crisis of refugees who have nowhere to call home: simply create a new country for them to live in. He wants to create a Refugee Nation, to create a new country to house all the world’s refugees.

The idea is that if we could give them a state of their own, at least they’d have a place to live in safety and be allowed to live and work like everybody else.

There is a misconception, says Buzi, that every inch of habitable land on Earth is taken.

Mr Buzi suggests that a country with uninhabited islands might be willing to let some go for a sum. He talks about countries with small populations that might be willing to let people live with them in exchange for money, such as the Caribbean island state of Dominica.

There are, he continues, thousands of uninhabited islands that are often available for sale to private individuals. The solution would consist in procuring a single large island, or a series of islands. (3)

TWO OBJECTIONS

Professor James C. Hathaway, director of the Programme in Refugee and Asylum Law at the University of Michigan Law School, whom I quoted already in my quoted 21 September 2015 post “Open Borders, now! – Syrian migrants do not qualify for refugee status”, says that there are two quite fundamental problems that make the Refugee Nation model unworkable in its present form. (4)

ONE
States may sell territory, but they don’t and won’t sell sovereignty. So the idea that the new ‘home’ could give out real citizenship to those who go there is not viable.

TWO
If a country did sell sovereignty, and any refugee could become a citizen, that might create other problems. The Refugee Convention would allow any and every state to force a refugee to go there, the Refugee Nation might become a dumping ground where refugees would face the Gaza-Strip risk, risk which results in refugees being trapped in what are effectively large-scale prison camps, says Hathaway, pointing to Australia, which has leased land on Pacific island nations to house asylum-seekers.

A related problem is that in a globalised world, given freedom of choice, people ultimately want to choose where they live, and are likely to seek to move to where their friends, family and greatest opportunities lie, adds Professor Alexander Betts, director of the Refugee Studies Centre at Oxford University.

ONE AND TWO

These two quite fundamental problems make the Refugee Nation model unworkable in its present form, says Dr Hathaway.

AS TO THE FIRST OBJECTION

The first objection is that states may sell territory, but they don’t and won’t sell sovereignty,

It is not uncommon in international law that one state cedes a piece of territory to another by treaty, says Prof. Martin Dixon. (5)

Cession is a process (“une opération”) through which one state renounces to the benefit of or in favour of another to the rights and titles which it enjoyed until then over a given territory
(“la cession est une opération par laquelle un Etat renonce en faveur d’un autre, aux droits et titres qu’il possédait jusque-là sur un territoire donné”),
says Prof. Pierre-Marie Dupuy. (6)

Cession of territory cannot happen or occur without (the) agreement of the population / inhabitants, adds Dupuy. (7)

In order to circumvent this requirement Buzi wants an inhabited island, i.e., an island without population / inhabitants.
There is no problem with that.

Dupuy draws attention to the fact that in the 19th century relationship of the sovereign to the territory was a relationship to assets (“était une relation patrimoniale”). That’s why in those days cession of territory occurred though sale. In 1803 France sold Louisiana to the USA and 1867 Russia sold Alaska to the USA.

From the eighth decade of the 19th century onward, cession of territory happened or occurred not through sale, but through peace treaties. By the 1871 Treaty of Frankfurt, Alsace–Lorraine was ceded by France to Germany and by the 1919 Treaty of Versailles, Alsace-Lorraine was ceded by Germany to France. (8)

We are now 100 years after the Treaty of Versailles, so we can experiment.

Buzi wants to buy unpopulated islands. Upon the purchasing of the insular territory, the relationship between Buzi’s organisation and the territory would again be “une relation patrimoniale”. Why not?

It is true that Prof. Ian Brownlie has drawn attention to the fact that the identification of the five modes of acquisition of territory (occupation, accretion, cession, conquest and prescription) should – in contentious cases – not be used as a substitute for analysis and that it is more important to concentrate on the precise reason why in any given case, a state can be said to have acquired sovereignty over territory. (9)

But that argument of Brownlie concerns the “ex post” analysis – in contentious cases – which aims at determining whether a state can be said to have acquired sovereignty over territory.

Here, i.e., in the case of the Refugee Nation, we are concerned with, or rather are performing, an “ex ante” analysis of the acquisition of statehood and thus sovereignty.

The first objection may hereby have been rebutted.

AS TO THE SECOND OBJECTION

The second objection to the creation of a Refugee Nation is that if a country did sell sovereignty, and any refugee could become a citizen, the Refugee Convention would allow any and every state to force a refugee to go there. Hence the Nation would become a dumping ground – and even a prison.

In early December 2015, Greece also faces the dumping-ground risk. To maintain Schengen, the EU wants to have control on its external borders. Greece, which is indeed not connected to the rest of the Schengen zone, is such a border. As Athens is unable to control this border and is, for reasons of national sovereignty upon which would be infringed by outside support, reluctant to accept outside support to do it more effectively, the EU has warned Greece, says the Financial Times (10), that it faces suspension – even exclusion, says Le Monde (11) – from the zone unless it accepts that support, first all for the registration of refugees. The EU also complains about Athens not having fulfilled its promise to arrange three flights to relocate migrants to other member states. This would be the first time a country would be suspended from Schengen.

These failings by Greece would make a mockery of all EU efforts to solve the refugee crisis. On the other hand, they confirm the risk of Greece becoming a dumping group for refugees, Le Monde quoting EU Commission president Jean-Claude Juncker as saying that Schengen is comatose.

The argument of Hathaway’s second objection seems to be that the Refugee Convention is about providing protection to people. People can normally get protection in the state, or in one of the states, of which they have the nationality. And if they cannot benefit from that protection in that state or in one of those states, they can flee and benefit from the protection of the state where they manage to get recognised as a refugee.

This objection seems to be more serious than the first one.

Okay, let’s try to handle it this way.

What is it that we want? What is that our governmental Masters want?

I drew already attention to the fact that the 29 November 2015 Brussels deal offers visa-free travel for Turkish citizens throughout the Schengen zone by October 2016 – that’s still ten months away from now – , but that if the deal fails, said zone will not survive. And I went on to ask: if the zone does not survive, what’s the use of having the right of free travel throughout the zone?

There is another contradiction in the position of the Masters of Fortress Europe. These Masters want to crack down on the “lucrative” (what’s the relevance of the fact that it is lucrative?) transport of people (which these Masters qualify as “people smuggling”) over the Greek-Turkish sea border, but they have erected a fence, a Berlin wall, on the Turkish-Greek land border, thereby making it necessary for people who want to cross from Turkey to Greece to use the sea border and its heroic transportation firms.

This second objection is the prison-camp objection.

RT, originally Russia Today, a Russian government-funded television network, says that Refugee Nation moots several locations for a new state: on a sparsely inhabited island of Indonesia or Philippines, a newly built island or a European enclave. (12)

Yes, a European enclave, says RT.

Now, if Schengen collapses, travel within the Schengen zone will no longer be passport-free.

If Refugee Nation is established in a European enclave, the prison-camp objection disappears since nobody, not even a Caucasian, will any longer be able to travel in the Schengen zone without a passport. Everybody will be in a prison camp.

I do immediately concede that more thinking is required about those two objections, about those two quite fundamental problems that make the Refugee Nation model unworkable in its present form, especially about the second objection. I hope that this post can be a very small contribution to resolving these problems.

As Dr Hathaway put it to The Independent, “What I love about [Jason Buzi and his Refugee Nation proposal] is his sense of moral outrage about a problem that could be fixed but no one is fixing.” (13)

(6)
Pierre-Marie Dupuy, “Droit international public”, Paris, Dalloz – Précis Dalloz. 1992, section 42, p. 27
Cession is a process (“une opération”) through which one state renounces to the benefit of or in favour of another to the rights and titles which it enjoyed until then over a given territory
(“la cession est une opération par laquelle un Etat renonce en faveur d’un autre, aux droits et titres qu’il possédait jusque-là sur un territoire donné”)

(7)
Dupuy, op. cit, section 42, p. 27-28

(8)
Dupuy, op. cit., section 42, p. 27

(9)
Many of the standard textbooks, and particularly those in English, classify the modes of acquisition in a stereotyped way which reflects the preoccupation of writers in the period before the First World War.
According to this analysis (if the term is deserved) there are five modes of acquisition –
occupation, accretion, cession, conquest, and prescription.
Apart from issues arising from the division and choice of the modes, the whole concept of modes of acquisition is unsound in principle and makes the task of understanding the true position much more difficult. Labels are never a substitute for analysis [Ivo: IN CONTENTIOUS CASES]. The inadequacies of the orthodox approach will perhaps be more apparent when the relevant questions have been examined in the sections which follow, but a few things may be usefully said here. A tribunal will concern itself with proof of the exercise of sovereignty at the critical date or dates, and in doing so will not apply the orthodox analysis to describe its process of decision. The issue of territorial sovereignty, or title, is often complex, and involves the application of various principles of the law to the material facts. The result of this process cannot always be ascribed to any single dominant rule or ‘mode of acquisition’.
The orthodox analysis does not prepare the student for the interaction of principles of acquiescence and recognition with the other rules.
Furthermore, a category like ‘cession’ or ‘prescription’ may bring quite distinct situations into unhappy fellowship.
Lastly, the importance of showing a better right to possess in contentious cases, i.e., of relative title, is obscured if too much credit is given to the five ‘models’.
[…]
(Ian Brownlie, “Principles of Public International Law”, Oxford University Press, 2008, 7th ed., p. 127)

Sovereignty is the most excessive form of jurisdiction in international law.
In general terms, it denotes full and unchallengeable power over a piece of territory and all the persons from time to time therein. (Dixon, op. cit., section 62, p. 123)

Sovereignty is the prerogative or privilege (“l’apanage” in French) of the state. Its possession entails for its possessor a direct consequence, i.e., that fact of bestowing upon the possessor a corporate identity within the international legal order. This is what is meant when one says that the State possesses an international legal personality.
La souveraineté constitue l’apanage (“prerogative”, “privilege” in English) de l’Etat.
Sa possession entraine automatiquement pour son titulaire une conséquence directe. Celle de lui conférer une identité corporative à l’intérieur de l’ordre juridique international. C’est ce qu’on enseigne en disant que l’Etat possède la personnalité juridique internationale.
(Dupuy, op. cit., section 58)

I said in my 24 November 2014 “Podemos and Spanish thalidomide petition to EU parliament” post that:

“Upon assuming their mandates in the European Union (EU) parliament, the Members of the EU Parliament (MEPs) from [Spain’s] Podemos party showed that we can attack the oligarchic nightmare with which thalidomide monsters are faced in the EU, due to the 1957 need of the European Economic Community (EEC) caste of the thalidomide scandal for its lunatic 1985 product-liability directive.
“The EEC needed thalidomide, but the EU rejects the drug’s victims.
“POINT OF ORDER
“According to Chambers Giant Paperback Dictionary, “monster” can be defined as a deformed person, plant or animal.
“Hence, anyone deformed by thalidomide, including this blogger, is by that definition a “monster. ”
“This blogger is also such a monster.
If he uses the noun “monster”, this is for the reason which makes you, dear reader, afraid of it.” (1)http://bphouse.com/honest_money/2014/11/24/podemos-and-spanish-thalidomide-petition-to-eu-parliament/

It would appear that Ms Mara Bizzotto, an Italian member of the EU parliament,
filed with said parliament in June 2015
a motion calling for a resolution of said parliament on a request for EU action in support of thalidomide victims.

Note that Ms Bizzotto recognises that the history of the marketing of thalidomide displays the characteristics, not of a drama, but of a … scandal.

Thalidomide was first marketed – in West Germany – in 1957, the same year that the EEC-Treaty was signed at Rome, after France had banned thalidomide. (3)

European law has become the corner stone (“la pièce maîtresse”) of national legislations concerning consumers. (4)

In order not to make it too obvious that thalidomide was necessary to achieve this,
the then-EEC waited three decades until 25 July 1985 to adopt its Product-Liability Directive 85/374 EEC, already quoted in note (3) of this blog post.

Isn’t it, three decades after this Directive, about time that the excellencies of the EU parliament finally face these consequences of the creation of the EEC,
adopt the Bizzotto motion,
and thereby order the EU member states involved in this _scandal_ to tackle and definitely resolve the problems of EU thalidomide monsters?

Motion for a European Parliament resolution on a request for EU action in support of Thalidomide victims
B8?0749/2015

The European Parliament,
– having regard to Rule 133 of its Rules of Procedure,
A. whereas because of the placing on the European market of the antinausea drug Thalidomide by the German pharmaceutical company Chemie Grünenthal in 1958, at least 20 000 babies were born with serious physical deformities;
B. whereas thousands of people are still alive who are affected by such deformities and who have never received equitable compensation for the harm inflicted on them;

1. Calls on the Commission to ask the Member States involved in this scandal to tackle and definitely resolve the problems of these citizens.

Last updated: 4 August 2015

(3)
Legal tabloids tell us that thalidomide is an example of the development-risk defence which allows producers to escape liability if they prove that the state of scientific and technical knowledge at the time when they put the product into circulation was not such as to enable the existence of a defect to be discovered, as defined at present “a contrario” (“argument based on the contrary” – denotes any proposition that is argued to be correct because it is not disproven by a certain case, says Wikipedia) in article 15(1)(b) of the 1985 EEC Product Liability Directive, formally Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products.

Dr. Herman Cousy, professor emeritus from the law department of the K.U. Leuven,
has demonstrated in 1996 that the thalidomide scandal cannot be considered to be an example of the development-risk defence
by saying on p. 163, in note 28,
of his paper “The Precautionary Principle: A Status Questionis” published in the “Geneva Papers on Risk and Insurance – Issues and Practice”, also available on the website of the “Geneva Association”, l’”Association Internationale pour l’Etude de l’Economie de l’Assurance”, the leading international think tank of the insurance industry, that :
“One often cites the Thalidomide (Contergan) case as an example of a development risk situation, although it appears that when thalidomide was brought onto the German market, the product had been banned in France. Can it be readily upheld, under such circumstances, that the conditions for a development risk situation were fulfilled?”https://www.genevaassociation.org/media/231494/ga1996_gp21%2879%29-cousy.pdf

This means that the primary cause of the thalidomide scandal is the fact that after the French Leviathan had banned thalidomide, other Leviathans, whose main reason for existence would be to “protect” their citizens, did not prevent the product being brought onto “their” markets nor did they immediately order the withdrawal of thalidomide from “their” markets, once the product appeared there after the French ban.

For applicants to the status of “humanitarian refugees”, i.e., “non-UN-Refugee-Convention refugees” or “extra-UN-Refugee Convention refugees”, to be assimilated to and thus to be treated in a similar way as applicants to UN-Refugee-Convention status, it is required that the persons to whom this similar treatment would be accorded are first classified as applicants to “humanitarian refugee” status and even Germany is no longer accepting this consequence of this classification.

With this post I am calling for open borders and for an end to the EU hypocrisy which says that Syrian migrants as such qualify for refugee status. Under the present legislation, the United Nations 1951 Convention and the 1967 Protocol relating to the Status of Refugees, (civil-)war refugees, and thus Syrian migrants, as such DO NOT qualify for refugee status.

1.
“Laissez faire, laissez passer, le monde va de lui-même”.

“Without a joint European plan, it’s every nation for itself”, reported Lucy Williamson on 18 September 2015 for the BBC in Croatia.

Croatia is overwhelmed by number of refugees arriving in Croatia. Hungary is complaining about the refugees’ resistance to complying with the
EU registration [qua persons, not qua refugees, entering the European Union?]
requirement.

While the politicians of Europe are squabbling about their irresponsibility, humanitarian refugees are faced with new humanitarian disasters on the outskirts of the EU and are being dumped by these same politicians onto each other’s country.
Let me stress that the refugees are being dumped not by despicable – or not so? – people smugglers, but by the honourable – and definitely so? – EU member states of Hungary and Croatia onto each other’s borders and onto, respectively, the borders of Austria and Slovenia. Hungary is even calling in army reservists to “protect its Croatian border” – with barbed wire after having closed its Serbian border with the same barbed wire.

And amidst the irresponsibility-squabble amongst its member states, the European Union (EU) has no clue what to do.

Meanwhile, scholars in United-Nations refugee-law argue that the USA should take the lead in showing the old continent how to solve this crisis.

“Laissez faire, laissez passer, le monde va de lui-même” – if there is no welfare state.

STRUCTURE OF THIS POST

2.
With this post I am calling for open borders and for an end to the EU hypocrisy which says that Syrian migrants as such qualify for refugee status. Under the present legislation, the United Nations 1951 Convention and the 1967 Protocol relating to the Status of Refugees, (civil-)war refugees, and thus Syrian migrants, as such DO NOT qualify for refugee status.

Persons fleeing war are not recognised as what in popular speech is called “political refugees” but are tolerated by some Leviathans on humanitarian grounds. It is true that the Convention definition of refugee has been expanded and that these developments are indicative of a widening of the circumstances in which persons may be said to be in need of international protection, but the developments do not constitute formal amendments to the Convention definition.

I am quoting from books published last century which I inherited from a previous life. The new editions of two of these books, Dr. James C. Hathaway’s 1991 first edition of “The Law of Refugee Status” and Dr. Guy S. Goodwin-Gill’s 1996 second edition of “The Refugee in International Law”, are still available on Amazon.co.uk. Excerpts from the 2014 second edition of Hathaway’s book are available on Google Books. (1) (2)

If the general principles changed this century, this post is completely wrong.

The fact that the September 1979 United Nations High Commissioner for Refugees (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol, was last reissued, not re-edited, in Geneva in December 2011 (3) seems to confirm that the general principles have not changed – at least had not (and were not expected to be?) changed (in the foreseeable future) in 2011.

If I am wrong, so be it. I am myself a thalidomide refugee from the southern Low Countries who fifteen years ago found refuge in Southeast Asia. Perhaps this century has accorded some legal recognition to humanitarian refugees of which I am not aware. I am however very surprised when I hear Dr James C. Hathaway in an 17 September 2015 audio interview “Asylum: From World War II to Europe’s Refugee Crisis”, declaring, on the one hand, that the EU member states are ignoring the fact that the 1951 Convention and 1967 Protocol tell them how to act in this situation and declare, on the other hand, that persons fleeing the Syrian war do not only, “fit the bill”, i.e., fall under the definition, of refugee claimant but also “fit the bill” of refugee. Hathaway’s own writings seem to contradict this. But then again the writings of Hathaway which I am invoking date from last century.

Goodwin-Gill and Hathaway write that apart from the refugees as defined by the 1951 Convention, there is a category called “humanitarian refugees”. Hathaway stresses that this category of “humanitarian refugees” is a category of refugees which only exists if the category has been instituted by voluntary initiatives which are not subject to the formal constraints of the Convention-based protection scheme and that states have therefore a substantial margin of discretion in determining the scope of their efforts with a view to providing protection programmes and burden-sharing arrangements

Today, mid-September 2015, the European Union is still unable to agree to admit humanitarian refugees who landed in Greece, a part of the EU territory, onto its whole territory, Hungary and Croatia (both EU members) having closed their borders to those refugees who landed in Greece and travelled over the territory of non-EU-members Macedonia and Serbia to their (Hungary’s and Croatia’s) borders. No, the EU is not only unable to admit humanitarian refugees, but the EU leading member state, the EU boss, Germany which had said that it would admit Syrians fleeing the war as humanitarian refugees is now closing its borders to all refugees, including those humanitarian refugees. Germany has thus still not taken the initiative to create the class of humanitarian refugees. And then the world is surprised that Hungary and Croatia are dumping humanitarian refugees onto each other’s borders and onto, respectively, the borders of EU members, Austria and Slovenia.

Today, mid-September 2015, we see that these voluntary initiatives creating a framework for the protection of humanitarian refugees are stubbornly not being taken, let alone implemented, by the EU Leviathans.

After section 3 will have demonstrated that under the current applicable (United Nations) legislation, persons fleeing war are not considered to be refugees in the sense of the U.N. Refugee Convention,
section 4 will discuss the definition of humanitarian refugees.

Section 5 examines whether this definition is being implemented by the EU member states.

After section 5 will have given a negative response to the question posed, section 6 will turn to the EU initiatives on the subject.
The section, section 6, will demonstrate that Martin Schulz, president of the EU parliament, says that the bureaucrats of the EU commission and EU parliament are more efficient than the national bureaucrats from whom they emanate, and that the former bureaucrats, i.e., the bureaucrats of the EU parliament and commission, are entitled to impose upon the EU member states the special protection programmes or regulatory schemes and the burden-sharing arrangements which, says Hathaway pp. 21-22, should have been concluded between states of reception and resettlement countries.
A summit of the EU council, not of the bureaucrats of the EU parliament nor of the bureaucrats of the EU commission, has been called for Wednesday 23 September 2015.

In a recent press article, Dr James C. Hathaway is nevertheless quoted not as calling for the overhaul of refugee law so as to include humanitarian refugees but only as calling for a new mechanism to share the responsibilities of protection around the world. The USA needs to show leadership on that, says Hathaway.

Section 7 will argue that the USA cannot possibly, as proposed by Hathaway, convince the EU to adopt, c.q., conclude, the special protection programmes or regulatory schemes and the burden-sharing arrangements which, says Hathaway pp. 21-22, should have been enacted by, c.q., concluded between the EU states of reception and resettlement and which the German boss of the EU parliament now wants his parliament and the EU commission to impose upon the EU member states through a mechanism for which Hathaway wants the USA to take the lead.

THE DEFINITION OF REFUGEE

3.
This section 3 demonstrates that under the current applicable (U.N.) legislation, persons fleeing war are not considered to be refugees.

When I – Ivo – speak about refugee, I mean anyone who’s fleeing the country where she’s living.
The problem with my concept of refugee is that in normal legal parlance the concept – as opposed to my concept – is restricted to refugees as defined by the UN Refugee Convention.
Hathaway writes that in some cases, there are conditional and discretionary programmes whereby states recognise as legitimate the protection needs of a class of refugee outside the scope of the Convention and afford protection to this class.
As Goodwin-Gill writes, states resist formally classifying such persons as refugees but accord them refuge.
Hathaway confirms p. 137 that refugee law is not coterminous with international human rights law
Still, Hathaway calls persons fleeing the Syrian war “refugees”.
Should we not call these refugees “non-Convention refugees” or “extra-Convention refugees”?

What in popular speech is called a “political refugee” is called by Hathaway “refugees whose fight is motivated by persecution rooted in civil or political status”.

What in popular speech is called a “political refugee” is called by lawyers (and thus by Hathaway) a “refugee” in the sense Article 1 A (2) of the United Nations 1951 Convention Relating to the Status of Refugee and the 1967 Protocol on the Status of Refugees.

Article 1 A (2) of the United Nations 1951 Convention Relating to the Status of Refugee – still – says that for the purposes of the present Convention, the term “refugee” shall
apply to any person who:
“As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. ”http://www.unhcr.org/3b66c2aa10.html

The 1967 Protocol relating to the Status of Refugees eliminated the restriction in the Convention that the claim relates to a pre-1951 event in Europe, thereby expanding the scope of the Convention definition to include refugees from all regions of the world. (Hathaway, op. cit., 1991, 1st ed., pp. 9-10)

“Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”, says the text of this article 1 A (2).

”[This means that] even after the elimination of the temporal and geographic limitation only persons whose migration is prompted by a fear of persecution on the grounds of civil or political status come within the scope of the Convention-based protection system.” (Hathaway, op. cit., 1991, 1st ed., p.10)

“Refugees whose fight is not motivated by persecution rooted in civil or political status are excluded from the rights regime established by the Convention.” (Hathaway, op. cit., 1991, 1st ed., p.11)

“While the refugee Convention was conceived as a response to victims of war, it was not intended that all those displaced by violent conflict should enjoy refugee status. […]. Victims of war and conflict are therefore not refugees UNLESS they are subject to differential victimisation based on civil or political status.” (Hathaway, op. cit., 1991, 1st ed,, p.185)

“This is so when the violence is not simply generalised but is rather directed toward a group defined by civil or political status; or, if the war or conflict is non-specific in impact, where the claimant’s fear can be traced back to specific forms of disenfranchisement within the society of origin.” (Hathaway, op. cit., 1991, 1st ed, p.188)

“[Courts have therefore] shown a marked reluctance to recognise as refugee persons whose apprehension of risk is borne out in the suffering of a large number of their follow citizens,
[… except when] the claimant is able to demonstrate that she been “personally singled out” for persecution.” (Hathaway, op. cit., 1991, 1st ed., p.90)

After an 8 September 2015 article had quoted Hathaway as saying that the duty of fortress Europe is not to admit but rather not to turn back refugees and that the building of the [Hungarian] fence that is a barrier to entry is a clear example of turning back, which is what is prohibited (4), Dr Hathaway is confirming in a 17 September 2015 audio interview “Asylum: From World War II to Europe’s Refugee Crisis” that it is impermissible [for Hungary] to push back refugees or persons who claim to be refugee. Professor Hathaway adds that Syrians and Afghans fit the bill. (5)

If Hathaway means that Syrians who claim to be refugees fit the bill, I have no problem with this statement. However in the absence of special protection programmes recognising Syrian humanitarian refugees, on the one hand, and burden-sharing arrangements concluded between states of reception and resettlement countries, on the other hand (see section 4), I do not see how fortress Europe could consider them as applicants to refugee status as defined by art 1 A (2) of the 1951 Refugee Convention as amended by the 1967 Protocol.

HUMANITARIAN REFUGEES

4.
After section 3 demonstrated that under the current applicable (U.N.) legislation, persons fleeing war are not considered to be refugees,
this section 4 discusses the definition of humanitarian refugee.
Section 5 will examine whether this definition is being implemented in the EU member states.
As the answer to the question posed in section 5 will turn out to be negative, section 6 will turn to the EU initiatives trying to achieve the same goal. Section 7 will discuss Hathaway’s proposal for the USA to take the lead in showing the planet how to solve this crisis which, says Hathaway, should not be a crisis as it has a solution in the application of the 1951 Convention and 1967 Protocol on the Status of Refugee.

Apart from the category of what in popular speech is called a “political refugee”,
apart from the category of what is called by Hathaway “refugees whose fight is motivated by persecution rooted in civil or political status”,
there seems to be another category, that of “humanitarian refugees”.

As Hathaway says, even in those states which have not formally committed themselves to the application of an expanded concept of refugee status, there is a consistent practice of recognising as legitimate the protection needs of a class of refugee outside the scope of the Convention. (Hathaway, op. cit., 1991, 1st ed., p.24)

Ian A. McDonald and Nicholas J. Blake wrote in 1991 in their “Macdonald’s [UK of NI-and-GB] Immigration Law and Practice” under reference to paragraphs 164 to 166 of the quoted UNHCR Handbook (3, again) whose unchanged text was still included in the December 2011 reissuance of the Handbook, that:
“Persons fleeing from the hardship of civil war are not as such Convention refugees.” (6)

Guy S. Goodwin-Gill says on p.134 of the 1996 second edition of his quoted book that there is however a practice whereby States provide protection to persons fleeing situations of grave and urgent necessity, even as states resist formally classifying such persons as “refugees” when outside the terms of 1951 Convention/1967 Protocol, and do not accept any obligation to grant them asylum or provide any particular durable solution. (1, again)
“The practice shows that states commonly accord refuge in such cases, and thereby confirm essential humanitarian principles deriving from a variety of sources, including the victims of armed conflicts and to civilians caught up in or fleeing war”, continues Goodwin-Gill on the same page.

As Hathaway explains:
“Refugees in flight from situations of generalised or serious disturbances of public order are often protected by special programmes or regulatory schemes or by burden-sharing arrangements concluded between states of reception and resettlement countries.” (Hathaway, op. cit., 1991, 1st ed., pp.21-22)

“Because these voluntary initiatives are not subject to the formal constraints of the Convention-based protection scheme, states have a substantial margin of discretion in determining the scope of their efforts.
“It is nonetheless striking to note the virtual unanimity of state practice in affording some protection to refugees outside the formal scope of the Convention.
“In general, while European states have constructed policies that safeguard national sovereignty over the admission of refugees in flight from broadly-based disturbances, there is a general practice of not returning persons to states in which there is a significant risk of danger due to internal upheaval or armed conflict.” (Hathaway, op. cit., 1991, 1st ed., p.22)

“In sum […] there is a consistent practice of recognising as legitimate the protection needs of a class of refugee outside the scope of the Convention.” (Hathaway, op. cit., 1991, 1st ed., p.24)

5.
After section 4 discussed the definition of humanitarian refugees,
this section 5 examines whether this definition is being implemented by the EU member states.
As the answer to the question posed in this section 5 will turn out to be negative, section 6 will turn to the EU initiatives trying to achieve the same goal.
Section 7 will discuss Hathaway’s proposal for the USA to take the lead in showing the planet how to solve this migration crisis which, says Hathaway, should not be a crisis as it has a solution in the application of the 151 Convention and 1967 Protocol on the Status of Refugee.

The question is: Is the definition of humanitarian refugees being implemented by the EU member states?

The answer to the question can be very short: Even Germany which had said it would accept persons fleeing the Syrian war as humanitarian refugees is now closing its borders – also to humanitarian refugees. The definition of humanitarian refugees is thus NOT being implemented by the EU member states.

As we saw in section 4, Goodwin-Gill and Hathaway say that apart from the refugees as defined by the 1951 Convention, there is a category called “humanitarian refugees”, Hathaway says that this category of refugees has been instituted by voluntary initiatives which are not subject to the formal constraints of the Convention-based protection scheme and that states have therefore a substantial margin of discretion in determining the scope of their efforts.

Germany, which had taken this initiative for persons fleeing the Syrian war, has now put an end to it by closing its borders.

Today, mid-September 2015, the European Union is still unable to agree to admit humanitarian refugees who landed in Greece, a part of the EU territory, onto its whole territory, Hungary and Croatia (both EU members) having closed their borders to those refugees who landed in Greece and travelled over the territory of non-EU-members Macedonia and Serbia to their (Hungary’s and Croatia’s) borders. While the politicians of Europe are squabbling about their irresponsibility, humanitarian refugees are faced with new humanitarian disasters on the outskirts of the EU and are being dumped by these same politicians onto each other’s borders.

Let me stress again that the refugees are being dumped not by despicable – or not so? heroic, should I say? – people smugglers, but by the honourable – and definitely so? or definitely not heroic? – EU member states of Hungary and Croatia onto each other’s borders and onto the borders of Austria and Slovenia. Hungary is even calling in army reservists to “protect its Croatian border” and no longer only its Serbian border – with barbed wire.

EU INSTITUTIONS AND HUMANITARIAN REFUGEES

6.
Today, mid-September 2015, we see that the voluntary initiatives instituting protection schemes for refugees outside the UN Convention are stubbornly not being taken, let alone implemented, by the EU Leviathans.

As we saw in section 4, Hathaway says that refugees in flight from situations of generalised or serious disturbances of public order are often protected by special programmes or regulatory schemes or by burden-sharing arrangements concluded between states of reception and resettlement countries.

In a 18 September 2015 interview with Le Monde, Martin Schulz, president of the EU parliament (which thinks of itself as the “European parliament”), says that if the EU member states are allowed to themselves deal with the migration crisis, nothing happens and that it is therefore up to EU commission and EU parliament to act at exceptional speed as the situation is exceptional. (7)
As if those bureaucrats would be more efficient than the national bureaucrats from whom they emanate.

Schulz thus recognises that no special programmes or regulatory schemes, as meant by Hathaway, have been concluded.

The present irresponsible situation in EU members Hungary and Croatia who are blaming each other for not accepting refugees and who are dumping refugees onto each other’s borders and on the borders of, respectively, Hungary and Slovenia, demonstrates that no burden-sharing as meant by Hathaway is occurring between between states of reception and resettlement countries.

The present irresponsible situation in Germany which has closed its intra-Schengen borders demonstrates that no arrangements have been concluded between states of reception and resettlement countries.

“Without a joint European plan, it’s every nation for itself”, reported Lucy Williamson on 18 September 2015 for the BBC in Croatia. (8)

When Schulz is saying that the bureaucrats of the EU commission and EU parliament are more efficient than the national bureaucrats from whom they emanate, does he mean that the former bureaucrats are entitled to impose on the EU member states the arrangements which the latter bureaucrats are unable to conclude?

An informal emergency summit, i.e., a summit of the EU council, not of the EU parliament or EU commission, has been called for Wednesday 23 September 2015, Among the factors at issue is the question of compulsory EU refugee quotas, to take the load from Germany and Sweden, which are bearing the brunt of the influx of newcomers, says The Guardian. (9)

Der Spiegel draws attention to the fact that the fact that this is an informal summit means that the decisions will be taken by qualified majority not by unanimity so that the countries opposing the relocation of refugees – above all Hungary, the Czech republic, Slovakia and Poland – can be outvoted. (10)

The Guardian nevertheless says that it is not clear Wednesday’s summit, the second emergency session in a week after failing to agree on quotas last Monday can achieve. The Guardian goes on to quote Robert Fico, the Slovakian prime minister, as saying that he would not be “dictated to” and would not observe any quota that was imposed and to argue that the Czechs and the Hungarians are blaming the Germans for the mess.

Does Fico’s statement that he would not be “dictated to” and would not observe any quota that was imposed not confirm my inference that when Schulz is saying that the bureaucrats of the EU commission and EU parliament are more efficient than the national bureaucrats from whom they emanate, he, Schulz, means that the former bureaucrats are entitled to impose on the EU member states the arrangements which the latter bureaucrats are unable to conclude?

Some news just in:
Reuters says that EU Council president Donald Tusk, who chairs European Union summits, said on Twitter on Sunday following a weekend visit to Jordan and Egypt that the EU needed to help Syrian refugees find a better life closer at home. (11)

7.
After having said
on p. 11
“The Convention has been expanded through […]. While these developments do not constitute formal amendments to the Convention definition, they are nonetheless indicative of a widening of the circumstances in which persons may be sad to be in need of international protection”,
and
on p. 24 that there is a consistent practice of recognising as legitimate the protection needs of a class of refugee outside the scope of the Convention,

Hathaway goes on to observe on p. 137 of the 1991 first edition of “The Law of Refugee Status” that:
“[Some] critics of refugee law argue that refugee law should embrace […] persons in flight from […] war […]. It is suggested by some that refugee law is essentially coterminous with international human rights law, or even with humanitarianism, such that any person whose basic dignity is jeopardised should be entitled to seek protection abroad. This general perspective collides with the implicit assumption of conventional refugee law that unless excluded from the national community, one should vindicate claims to liberties and entitlements from within the state. So long as the victims of a generalised disaster are not denied membership in the body politic, they are expected to work to address their needs through existing structures or by creating or rebuilding internal mechanisms for redress. ”

In a 11 September 2015 press article, Hathaway, now director of the Programme in Refugee and Asylum Law at the University of Michigan, is therefore quoted as saying that the United States of America should accept a large number of refugees in order to help convince other nations to pitch in. “Yes, it would be nice to resettle some more refugees today,” said Hathaway. “But the important thing that they [the USA] should be doing is leading—not a new refugee convention, but a new mechanism to share the responsibilities of protection around the world. The US needs to show leadership on that.” (12)

I submit that by not calling for a new refugee convention, Dr Hathaway is merely perpetuating the EU hypocrisy which says that Syrian migrants as such qualify for refugee status, whereas, as he writes on p. 97 of the 1991 first edition of “The Law of Refugee Status”
in the final paragraph of Chapter 3 “Well-Founded Fear”,
only if persons like the claimant may face serious harm in her country,
and if -AND HERE IT COMES – that risk is grounded in their civil or political status,
then in the absence of effective national protection he is properly considered to be a Convention refugee.

Ivo adds to this Hathaway-quote:
“Nor can he be considered to be a humanitarian refugee, as in the absence of legislation classifying Syrian war refugees as humanitarian refugees and in the absence – a fortiori – of legislation assimilating the refugees of this class of humanitarian refugees to Convention refugees. no humanitarian-refugee status can be granted to this class.”

In the 17 September 2015 audio interview “Asylum: From World War II to Europe’s Refugee Crisis”, Hathaway nevertheless seems to be calling persons fleeing the Syrian war not only refugee claimants, but also refugees. (5) This implies that Hathaway means that under the present UN legislation, some of them at least should be granted refugee status. But in the absence of legislation assimilating (Syrian) humanitarian refugees to Convention refugees. no such status can be granted to (Syrian) refugee claimants.

As I said at the outset of section 3:
When I – Ivo – speak about refugee, I mean anyone who’s fleeing the country where she’s living.
The problem with my concept of refugee is that in normal legal parlance the concept – as opposed to my concept – is restricted to refugees as defined by the UN Refugee Convention.
Hathaway writes that in some cases, there are conditional and discretionary programmes whereby states recognise as legitimate the protection needs of a class of refugee outside the scope of the Convention and afford protection to this class.
As Goodwin-Gill writes, states resist formally classifying such persons as refugees but accord them refuge.
Hathaway confirms p. 137 that refugee law is not coterminous with international human rights law
Still, Hathaway calls persons fleeing the Syrian war refugees,
Should we not call these refugees “non-Convention refugees” or “extra-Convention refugees”?
“Bis repetita placet!”

How can Hathaway argue in the 17 September audio interview that EU nations are ignoring the fact that the 1951 Convention tells them how to act with refugees? (5)
The Convention tells them only how to act with Convention refugees.
Not how to act with “non-Convention refugees” or “extra-Convention refugees”.

Yes, it could be argued that “non-Convention refugees” or “extra-Convention refugees” should be assimilated to and thus be treated in a similar way as Convention refugees. But for that to happen, it is first required that the persons to whom this similar treatment is accorded are classified (hi, Immanuel Kant, you bastard!) as applicants for “humanitarian refugee” status, i.e. “non-Convention” or ”extra-Convention” “refugee”, status. After that classification, they must be assimilated to and accorded the same treatment as applicants for (Convention-) refugee status and even Germany is no longer accepting this consequence of this classification.

The quoted 11 September 2015 article (12) quoting Hathaway as saying that the USA should take the lead in admitting refugees and therefore in convincing the EU to do the same comes on the heels of the quoted 8 September 2015 article (4) quoting Hathaway as saying that the duty of fortress Europe is not to admit but rather not to turn back refugees and that the building of the {Hungarian] fence that is a barrier to entry is a clear example of turning back, which is what is prohibited.

As Hathaway says at the start of the quoted 17 September 2015 audio interview, it’s only 100 years ago
[Ivo: when the gold standard, which had been in force since the Napoleonic wars, was being repealed and the USA central bankster, the Federal Reserve, was being instituted]
that border controls were erected by [backward] nation-states in the western hemisphere which wanted to protect the common ethnic stock of their subjects.

Contrast this freedom enjoyed before the First World War, of which Bevin dreamt, to good (or rather no longer so good) old Guy Verhofstadt, former prime minister of the southern Low Countries, now a member of the EU parliament, who in a 17 September 2015 tweet said he wanted refugees to be treated as merchandise which must be distributed among EU member states.

Repeal passports and immigration law!
Refugee law will become without object!

As Guy Goodwin-Gill, writes people fleeing war are not recognised as refugees but are tolerated by other Leviathans on humanitarian grounds – except in Hungary, Croatia, Slovenia, Austria and … Germany

“Laissez faire, laissez passer, le monde va de lui-même” – if there is no welfare state.

A key features of this book is that it is the completely revised third edition of the leading text in the field of international refugee law, bringing the case law and analysis up to date, including the 2004 EU Qualification Directive and other EU harmonisation measures, say the publisher, Oxford University Press.http://ukcatalogue.oup.com/product/9780199281305.do

This seems to confirm that the general principles have not changed. I am reassured by the fact that the September 1979 United Nations Human Commissioner for Refugees reissued in December 2011 its September 1979 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, after having reedited it in January 1992l

CHAPTER V – SPECIAL CASES
A. War refugees
164. Persons compelled to leave their country of origin as a result of international or national
armed conflicts are not normally considered refugees under the 1951 Convention or 1967 Protocol.22 They do, however, have the protection provided for in other international instruments, e.g. the Geneva Conventions of 1949 on the Protection of War Victims and the 1977 Protocol additional to the Geneva Conventions of 1949 relating to the protection of Victims of International Armed Conflicts.23
165. However, foreign invasion or occupation of all or part of a country can result–and
occasionally has resulted–in persecution for one or more of the reasons enumerated in the 1951
Convention. In such cases, refugee status will depend upon whether the applicant is able to show
that he has a “well-founded fear of being persecuted” in the occupied territory and, in addition,
upon whether or not he is able to avail himself of the protection of his government, or of a protecting power whose duty it is to safeguard the interests of his country during the armed
conflict, and whether such protection can be considered to be effective.
166. Protection may not be available if there are no diplomatic relations between the
applicant’s host country and his country of origin. If the applicant’s government is itself in exile,
the effectiveness of the protection that it is able to extend may be open to question. Thus, every
case has to be judged on its merits, both in respect of well-founded fear of persecution and of the
availability of effective protection on the part of the government of the country of origin.

(4)
Can Hungary and Denmark legally turn away refugees?
International law grants refugees the rights not be sent back to harm and not to be punished for illegally entering countries that have signed a treaty.
By Lonnie Shekhtman, Staff September 8, 2015http://www.csmonitor.com/World/Europe/2015/0908/Can-Hungary-and-Denmark-legally-turn-away-refugees
SNIP
“The duty is not to admit, but rather not to turn back,” said Prof. Hathaway in an email interview. “The building of the fence that is a barrier to entry is a clear example of turning back, which is what is prohibited.”

(6)
Ian A. Macdonald and Nicholas J. Blake, “Macdonald’s Immigration Law and Practice” , London, Butterworths, 1991, 3rd ed., p. 295
Persons fleeing from the hardship of civil war are not as such Convention refugees [says the UNHCR (United Nations High Commisioner for Refugees) Handbook for Determining Refugee Status and Guidelines on International Protection] But where the governing authority of the country uses unlawful means to terrorise an ethnic, religious, social or political authority, this can be the occasion for the very gravest form of persecution.

(8)
Without a joint European plan, it’s every nation for itself”, reports Lucy Williamson for the BBC in Croatia
Migrant crisis: Neighbours squabble after Croatia U-turn
18 September 2015http://www.bbc.com/news/world-europe-34291648

(12)
America Once Accepted 800,000 War Refugees. Is it Time to Do That Again?
To solve the Syrian refugee crisis, experts say the United States should take a page from its post-Vietnam playbook.
—By Max J. Rosenthal
| Fri Sep. 11, 2015 2:41 PM EDThttp://www.motherjones.com/politics/2015/09/syria-refugees-europe-vietnam
SNIP
But even if the United States doesn’t accept a large number of refugees—the 10,000 that will now be allowed into the United States is about half the number of refugees who arrived in Munich from Hungary last weekend—merely taking action could help convince other nations to pitch in. “Yes, it would be nice to resettle some more refugees today,” said James C. Hathaway, the director of the Program in Refugee and Asylum Law at the University of Michigan. “But the important thing that they should be doing is leading—not a new refugee convention, but a new mechanism to share the responsibilities of protection around the world. The US needs to show leadership on that.”

The Thalidomide shame of Madame the “Fiscal General del Estado” at the Spanish “Tribunal Supremo”

“A government’s first job is to protect its citizens.”

The Spanish film, “50 Años de Vergüenza”, “50 Years of Shame”, directed by Javier Almela, Fernando Rodríguez and Ana Salar, a documentary film about the Thalidomide scandal, was screened on 16 August 2015 at the Cebu (Philippines) International Documentary Film Festival (CIDFF).https://www.facebook.com/cidff.org/posts/787207951395926

The trailer of the film argues that:
“Fifty years ago, a drug, Thalidomide, slipped into the lives of thousands of families forever. A substance that created babies with malformations and transformed their lives into the toughest challenge.
“Grünenthal is the pharmaceutical company that created and sold the drug; the responsible of a story that, in many places, has been barely told.”https://www.youtube.com/watch?v=aThgmjcDT2g

Fact is however that before Thalidomide was ever marketed, i.e., before it was marketed (in West-Germany where it was first marketed), the product had been banned in France.
This raises the question as to why some governments, starting with the West-German government, did not prevent Thalidomide being marketed on their territories.

Section 1 of this blog-post copies the pamphlet which I submitted to the CIDFF.

Sections 2 and 3 will analyse the film which forgets that a government’s first job is to protect its citizens.
The film is based on two cornerstones, the interview of Martin Johnson, (former) executive director of the UK of NI-and-GB Thalidomide Trust, which will be examined in Section 2, and the interview of Ignacio Martínez, abogado in Murcia, counsel of AVITE, the Association of the Victims of Thalidomide in Spain, which will be examined in Section 3.

Section 4 will return to the title of the film which speaks about “50 Years of … Shame”. The section will deal with the shame of Thalidomide monsters for their monstrosity and the shame of society for the Thalidomide scandal.

As this is a film about the situation faced by Thalidomide monsters in Spain, the film discusses the court proceedings in compensation which the Thalidomide monsters recognised by the ministry of health of the King of Spain have filed in 2013 against Grünenthal GmbH (formerly Chemie Grünenthal GmbH), the pharmaceutical company that created and sold Thalidomide, in the Madrid Court of First Instance.
After this lower acceded to their demand, the Provincial Court overturned the condemnation of Grünenthal.
The original plaintiffs have filed an appeal against the judgment of the latter court to the Supreme Court, “Tribunal Supremo”, where the case will be argued (and the judgment delivered?) on 23 September 2015.

The shame – that’s what the film should be about, according to its title – of Madame the “Fiscal General del Estado”, the Advocate-General at the “Tribunal Supremo”, will be dealt with in Section 5.

PPOINT OF ORDER
If I use the noun “monster”, this is for the reason which makes you afraid of it.
Look at the dictionary definition of “monster” – a deformed person, plant or animal, says Chambers Giant Paperback Dictionary.
We satisfy this definition.
END OF POINT OF ORDER

1.
The pamphlet which I submitted on 16 August 2015 to the Cebu (Philippines) International Documentary Film Festival (CIDFF) read as follows:

The trailer of the film “50 Years of Shame”, “50 Años de Vergüenza”, directed by Javier Almela, Fernando Rodríguez and Ana Salar, a documentary film about the Thalidomide scandal, argues that:

“Fifty years ago, a drug, Thalidomide, slipped into the lives of thousands of families forever. A substance that created babies with malformations and transformed their lives into the toughest challenge.
“Grünenthal is the pharmaceutical company that created and sold the drug; the responsible of a story that, in many places, has been barely told.”https://www.youtube.com/watch?v=aThgmjcDT2g

Legal tabloids tell us indeed that Thalidomide is an example of the “development-risk defence” which allows producers, like Grünenthal, to escape liability if they prove that the state of scientific and technical knowledge at the time when they put the product into circulation was not such as to enable the existence of a defect to be discovered.

Dr Herman Cousy, professor now-emeritus from the law department of the K.U. Leuven, has demonstrated in 1996 that
the Thalidomide scandal cannot be considered to be an example of the “development-risk defence”
by asking on p. 163, in note 28,
of his paper “The Precautionary Principle: A Status Questionis” published in the “Geneva Papers on Risk and Insurance – Issues and Practice”, also available on the website of the “Geneva Association”, the leading international think tank of the insurance industry, whether:

“One often cites the Thalidomide case as an example of a development risk situation, although it appears that when Thalidomide was brought onto the German market, the product had been banned in France.
“Can it be readily upheld, under such circumstances, that the conditions for a development risk situation were fulfilled?”https://www.genevaassociation.org/media/231494/ga1996_gp21%2879%29-cousy.pdf

Does this not mean that the “responsible”, the cause, or the culprit of the Thalidomide scandal is
not Grünenthal, the pharmaceutical company that created and sold the drug,
but the governments which, after the French government had banned Thalidomide,
neither did prevent the product being brought onto their markets
nor did, once the product had been brought onto their markets, immediately order its withdrawal from these markets?

2.
The film itself says that the Thalidomide scandal changed the regulation of medicines, thereby implying that the sheeple should be thankful to Thalidomide monsters for having been instrumental in bringing about this change.

If the Thalidomide scandal in the late nineteen-fifties early nineteen-sixties has changed the regulation of medicines, why did the then European Economic Community (EEC) then wait until 25 July 1985, that’s TWENTY-FIVE YEARS, to adopt its Product-Liability Directive 85/374 EEC,
formally Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products?http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:31985L0374

The film says that Thalidomide monsters are victims of Grünenthal.
No, Section 1 of this blog-post has demonstrated that we are victims of government.

The two cornerstones of the film can be summarised by two interviews recorded in the film. The interview of Martin Johnson, (former) executive director of the UK of NI-and-GB Thalidomide Trust, which will be examined in this section 2 and the interview of Ignacio Martínez, abogado in Murcia, counsel of AVITE, the Association of the Victims of Thalidomide in Spain, which will be examined in dection 3.

Johnson says that Grünenthal paid a small price for the risks taken.

No, Mr Johnson, the risks were not taken by Grünenthal, but by the governments which after the French ban of Thalidomide did not oppose the marketing of Thalidomide on “their” territories.

To support Johnson’s claim, the film had quoted people saying that in the early nineteen
sixties, they called Grünenthal informing them that they suspected Thalidomide to be causing the birth defects.
Why did those people not ask governments to force Grünenthal to withdraw the product from “their” territories?

The heroes from Grünenthal were never forced by the bureaucrats from any government to withdraw Thalidomide from the latter’s market.

Grünenthal withdrew Thalidomide from most European markets on 27 November 1961, ON ITS OWN INITIATIVE
– yes after much pressure from the public (the medical profession)
– no pressure from government, however – ,
but, as I said, on its own initiative. (1)

In Spain, Thalidomide continued however to be sold after this November 1961 withdrawal. The Franco regime did not oppose its marketing.

As the next section, section 3, will demonstrate, the film goes on to complain that Grünenthal did not inform the Spanish medical profession of this withdrawal.
Does the film mean that it was only up to Grünenthal, not up to the Spanish government, to warn the Spanish medical profession about the dangers involved in Thalidomide?
As the film hides that France had banned Thalidomide before it was ever marketed, i.e., before it was marketed in West-Germany, the film does not complain that France did not make explicit that and why it had banned Thalidomide – before it was ever marketed (in West-Germany).

What? A government’s job is only to protect “its” “own” citizens? Not the citizens of another government?

The Thalidomide story has, in many places, been barely told, says the trailer of the film.

3.
The film interviews Ignacio Martínez, abogado in Murcia, counsel of AVITE, the Association of the Victims of Thalidomide in Spain. This interview is, as I said in section 2, together with the interview of Martin Johnson, (former) executive director of the UK of NI-and-GB Thalidomide Trust, one of the two cornerstones of the film.

Martínez seems to centre his argument around a letter from Grünenthal to its distributor in Spain, the Laboratorios MEDicamentos INternacionales SA, hereafter Medinsa, dated December 21, 1961, which, according The Sunday Times, reads: “You write that you will not disclose the reason for the sales ban to the Spanish doctors and that you will furthermore inform your external staff only partially, not fully.” It points out that doctors in Germany, Belgium, the Netherlands, Portugal, Switzerland and several other countries have received letters warning them of the specific problems with Thalidomide. “But if you do not consider such measures necessary [in Spain] then we concur.” (2)

“El Supositorio – Perlas médicas que se absorven poco a poco”, the blog of Dr Vicente Baos, general practitioner, indicates that
that this letter follows on the heels of a telegram of 27 November 1961, date of the withdrawal of Thalidomide from West-Germany and its neighbours,
which Grünenthal did send
(“would have sent” says Dr Vicente Baos)
to Medinsa, and to which Medinsa has replied by its letter of 05 December 1961
(if, as Dr Baos insinuates, Grünenthal did not send this telegram of 27 November 1961,
why would Medinsa have replied to this telegram ?)
and in which Medinsa indicates not to be informing the Spanish medical profession of the reason for discontinuing the sales in the EEC (of which Spain was not yet a member) and to give only partial information and not all information to its external partners.http://vicentebaos.blogspot.com/2013/11/el-caso-de-la-talidomida-fue-una.html

The Sunday Times comments that:
“The letter is one of hundreds that has lain undisturbed for half a lifetime in the German state archives in Düsseldorf, and discovered by the UK Thalidomide Trust’s National Advisory Council (NAC). They reveal that, in Spain, Grünenthal showed a breathtakingly cynical disregard for human life on an epic scale.” (2, again)

I just said that Martínez attacks Grünenthal. My statement was based on (the trailer of) the film. But the subtitle of the Sunday Times article I just quoted says that the “authorities” refuse to accept responsibility.
So who’s the culprit – Grünenthal or the “authorities”?

Martínez says that after Grünenthal had withdrawn the product from other European markets (Spain was not yet an EEC member), Grünenthal should have informed the medical profession of the withdrawal and of the reason for this withdrawal.

Had the Spanish government here not a role to play as protector of “its” citizens? No, it was [only] Grünenthal’s behaviour that showed a breathtakingly cynical disregard for human life on an epic scale, says The Sunday Times? But The Sunday Times immediately adds that the “authorities” refuse to accept responsibility. So, yes, The Sunday Times admits that the Spanish Franquist-Leviathan did not act as it should have acted.

As the film hides that France had banned Thalidomide before it was ever marketed, i.e., before it was marketed in West-Germany, the film does not complain about France not informing the European medical profession that and why it had banned Thalidomide, nor does it complain about West-Germany (and the others) feigning to ignore this ban and going on to tolerating Thalidomide being marketed on “its” (“their”) territory.

Even if there were in the late nineteen-fifties no laws requiring the licensing of medicines in West-Germany and other countries, a government’s first job is to protect “its” citizens
so that
when Thalidomide appeared on “their” markets, after the French ban, the governments on “whose” markets it appeared should have ordered the removal of the product from “their” territory.

But, as we saw at the outset of section 2, the film itself says that the Thalidomide scandal changed the regulation of medicines. Our Master, government, has distorted the facts in such a way as to enable Him to argue that the Thalidomide scandal, which He caused, demonstrates the need for Him to regulate medicines.

Section 2 went on to argue that government is so conscious of the distortion of the facts that He, the European Economic Community (EEC),
who was founded in 1957,
the year Thalidomide was first marketed in West-Germany but not in France
(France and Germany still being in 2015 the pillars of the European Union (EU)),
waited until 25 July 1985, that’s _TWENTY-FIVE YEARS_ to adopt its Product-Liability Directive 85/374 EEC?
Was that perhaps because Spain would join the EEC on 01 January 1986?

The Thalidomide story has, in many places, been barely told, says the trailer of the film.

4.
“50 Años de Vergüenza”? “Vergüenza” means “shame”.

This section 4 examines the shame of Thalidomide monsters for their monstrosity and the shame of society for the Thalidomide scandal.
The next section, section 5, will deal with the shame of Madame the “Fiscal General del Estado”, the Advocate-General at the “Tribunal Supremo”.

The reason why we were not told the truth about the cause of our handicap was the shame of our parents

We are however also ashamed and the “culture” also. (3) (4)

Indeed, at our births, everybody acted badly. This has frightened us within minutes. We have concluded within those same minutes that there was something wrong with us.
[Interesting questions:
Something wrong vis-à-vis what?
Did we know at birth what is “normal”?
Did we conclude that there was no order outside of the womb?]

This reaction has been stored. The conclusions we draw from this storage, i.e., the shame, prevent us from acting comfortably with people.

This shame is “asking” energy. Emotions are energy felt in the body. Positive emotions are useful. Negative emotions interfere with our capacity to enjoy life.

Our energy is wrapped up in shame. This energy should be freed up.

Our handicap is not the missing limbs. It is the shame.

Shame can make people sick, making them want to disappear, jeopardising their life.

People humiliate / shame us because we are monsters.

Shame is not only with our parents.

It is also in the CULTURE.

This SUCKS – gloog!

Therefore,

ONE
nobody dares to make explicit – to us – that France had banned Thalidomide before it was ever marketed, i.e., before it was marketed on the territory of West-Germany.

TWO
after half a century, we still have to fight AGAINST (our and) their shame.

The shame explains why we were never (fully? – I didn’t yet receive anything) compensated for the damage we are still suffering.

And the film then features a West-German Thalidomide monster (like the UK of NI-and-GB monsters the West-German Thalidomide monsters have been overcompensated) arguing that some costs have not yet been compensated. Dear Madame, if you uphold such an argument, it would appear to me that before you can argue that some costs have not yet been compensated, you should first clearly indicate – in writing – which costs have (already) been compensated.`

The Thalidomide story has, in many places, been barely told, says the trailer of the film.

5.

5.1.
DISCLAIMER
I am not qualified to give any opinion on Spanish law.
END OF DISCLAIMER

As this is a film about the situation faced by Thalidomide monsters in Spain, the film discusses the court proceedings which 5%, that’s one in twenty, of the Spanish Thalidomide monsters, those recognised by the ministry of health of the King of Spain, had filed in 2013 against Grünenthal.

The film says that on 20 November 2013 judge Gemma Susana Fernández Díaz, Judge of First Instance number 90 of Madrid, ordered Grünenthal to pay 20’000 euro for each percentage point of disability of the victims as recognised by Spain’s Health Ministry.

The judge did not consider it necessary to inquire into the tort which Grünenthal would have committed.
No, Grünenthal produces an unsafe medicine, therefore it is liable for tort damages.
What tort? No reply.

On Wednesday 22 October 2014, Madrid’s “Audiencia Provincial”, Provincial Court, ruled that the claims of the original plaintiffs were prescribed
(time-barred by a “statute of limitations”, would USofA-ans say),
thereby overturning the condemnation of Grünenthal by the Judge of First Instance. (5)

As the film was recorded in 2013, it could not mention the whole procedure.
The film therefore ends with a message, which was later attached to it, saying that the “Audiencia Provincial” overturned the judgment of the Judge of First Instance and that the original plaintiffs have filed an appeal against this judgment of the “Audiencia Provincial” with the Supreme Court, the “Tribunal Supremo”.

The judgment of the “Tribunal Supremo” had originally been set for release on 23 June 2015
(at least, if that’s the correct translation of
“la sentencia sobre el caso de la talidomida en España se dará a conocer el próximo día 23 de junio”)(6),
but on 24 June 2015, pope Francis received the Spanish Thalidomide monsters on St Peter’s Square at the Vatican (7)
and the release of the judgment has been postponed to 23 September 2015. (8)

5.2.
DISCLAIMER
I am not qualified to give any opinion on Spanish law.
END OF DISCLAIMER

5.2.1

Section 1 of Article 1 of the Spanish Constitution says that Spain is established as a _SOCIAL_ and democratic _STATE_, subject to the _RULE OF LAW_, which advocates freedom, justice, equality and political pluralism as highest values of its legal system. (9)

This Section of Spanish Constitution thus mentions the “Rechtsstaat” (Rule of Law) and the “Sozialstaat” in the same sentence.

5.2.2
DISCLAIMER
I am not qualified to give any opinion on Spanish law.
END OF DISCLAIMER

In a civil-law (as opposed to common-law) country like Spain (and at the European Court of Justice), the Advocate-General, the “Fiscal General del Estado”, has to give a written advice to the Supreme Court as to the request / petition filed by the plaintiff, the reply of the defendant in the “Tribunal Supremo” and the rejoinder of the plaintiff.

If I am not mistaken, AVITE nor its counsel filed a petition / request with the “Tribunal Supremo”.

The case seems (remember that I am not qualified to give any opinion on Spanish law) to have been brought to the “Tribunal Supremo” by the Fiscal, either the Fiscal at the “Audiencia Provincial” or the Fiscal at the “Tribunal Supremo”.

What seems different in Spain to my native southern-Low-Countries which are also a civil-law country is that Article 124 of the Spanish Constitution and Article 11.5 of the Spanish Law of Civil Procedure (“Ley de Enjuicimianto Civil”) determine the conditions under which the intervention of the Office of Fiscal can go further than giving an advice to the court on the admissibility and the merits of the case. These articles determine the conditions under which the Office of the Fiscal can go on to intervene in proceedings in defence of the general interest, in defence of consumers and in defence of users.

Article 124, Section 1, of the Spanish Constitution says that:
“The Office of the Fiscal, without prejudice to functions entrusted to other bodies, has the task of promoting the operation of justice in the defence of the rule of law, of citizens’ rights and of the public interest as safeguarded by the law, whether ex officio or at the request of interested parties, as well as that of protecting the independence of the courts and securing before them the satisfaction of social interest.”

Article 11.5 of the Spanish Law of Civil Procedure (“Ley de Enjuicimianto Civil”) says that:
“The Office of the Fiscal is entitled to bring any action in defence of the interests of consumers and users.”
“El Ministerio Fiscal estará legitimado para ejercitar cualquier acción en defensa de los intereses de los consumidores y usuarios.”http://www.boe.es/buscar/act.php?id=BOE-A-2000-323

In a press article of January 2015, Madame the “Fiscal General del Estado” is quoted as saying that she is intervening in virtue of Article 124 of the Spanish Constitution and Article 11.5 of the Spanish Law of Civil Procedure (“Ley de Enjuicimianto Civil”). (10)

This concerns the admissibility of her intervention which thus goes further than giving an advice to the court on the admissibility and the merits of the arguments invoked
– in fact no arguments are being invoked as no request / petition seems to have been filed with the “Tribunal Supremo” –
by the plaintiffs at the “Tribunal Supremo” against the judgment of the “Tribunal Provincial”.

I repeat that I am not qualified to give any opinion on Spanish law.

5.2.3
DISCLAIMER
I am not qualified to give any opinion on Spanish law.
END OF DISCLAIMER

Section 5.2.2 dealt with the “admissibility” of the intervention of the “Fiscal General del Estado” at the “Tribunal Supremo”.

What arguments does the Fiscal invoke on the “merits” of her intervention? That’s the question with which this section 5.2.3 deals.

From what I gather in the quoted May 2015 press article which merely reports the statements of AVITE – without the press being able to read the advice of the “Fiscal General del Estado” – the said Fiscal would support AVITE’s argumentation and would be arguing four things, i.e., would be making four statements. (6, again)

As Bing and Google are unable to translate this in one coherent sentence, I will divide this into three separate statements, TWO, THREE and FOUR.

TWO, the problem raised by the Spanish victims of Thalidomide is a problem which victims of Thalidomide invoke all over the planet. We [the authorities established on the territory of the Kingdom of Spain] cannot fail to give to the Spaniards affected a solution consistent with national and international law.

THREE, this solution consistent with national and international law consists in paying 120’000 euro – for all (“para todos”) –,

FOUR,
this amount of 120’000 euro is a compensation for the damage caused by the infringement of Article 1 of the Spanish Constitution [whose Section 1 says, as we saw in section 5.2.1 of this blog-post, that Spain is established as a social and democratic state, subject to the rule of law, which advocates freedom, justice, equality and political pluralism as highest values of its legal system.]

It appears immediately that AVITE does not say how the “Fiscal General del Estado”, the Advocate-General at the “Tribunal Supremo”, the Supreme Court of Spain, replies to the argument of the “Audiencia Provincial” that the demands are prescribed
(time-barred by a “statute of limitations”, would USofA-ans say).

AVITE does not outline how the “Fiscal General del Estado” proposes that the “Tribunal Supremo” could conclude that the original plaintiffs’ demand is not prescribed.

This seems to confirm what I said in section 5.2.2 of this blog-post, i.e., that AVITE did not file any petition / request with the “Tribunal Supremo”, but that the case was brought to the said Tribunal by the Fiscal in virtue of Article 124 of the Spanish Constitution and Article 11.5 of the Spanish Law of Civil Procedure (“Ley de Enjuicimianto Civil”).

Me, Ivo Cerckel, I can admit anything you want,
but when I realise that the “Fiscal General del Estado” would, according to AVITE, be writing in her advice to the “Tribunal Supremo” that
the Kingdom of Spain is established as a _SOCIAL STATE_,
I cannot but conclude that it is not up to Grünenthal
(that it was not up to Grünenthal under the Spanish Constitution under the Franco regime,
Constitution which, I suppose, did not say that Spain was a Social state)
to establish or constitute such a state.

The Thalidomide story has, in many places, been barely told, says the trailer of the film.

5.2.4
DISCLAIMER
I am not qualified to give any opinion on Spanish law.
END OF DISCLAIMER

Section 1 of Article 124 of the Spanish Constitution mentions that Spain is subject to the rule of law, mentions thus that Spain is a “Rechtsstaat”, but does not mention that Spain is a “Sozialstaat”.

Section 1 of Article 1 of the Spanish Constitution says that Spain is established as a _SOCIAL_ and democratic _STATE_ , subject to the _RULE OF LAW_, which advocates freedom, justice, equality and political pluralism as highest values of its legal system. (9, again)

This Section 1 of Article 1 of Spanish Constitution thus mentions the “Rechtsstaat” (Rule of Law) and the “Sozialstaat” in the same sentence. (11)

This “rule of law”, “Rechtsstaat”, is of course an ago-old concept which is diametrically opposed to the “Sozialstaat”, but as the latter (“Sozialstaat”) is the younger, the “Sozialstaat” should have precedence over the “Rechtsstaat”.

This is one more argument in favour of the view that the “Fiscal General del Estado” is arguing that the “Tribunal Supremo” could condemn the Welfare State to pay in lieu of the original defendant, Grünenthal.

It’s not my fault that some (German and other) so-called “intellectuals” have introduced (the concept of) the Welfare State jointly with, and in the same bad faith as with, Thalidomide after the Second World-War.

The Thalidomide story has, in many places, been barely told, says the trailer of the film.

5.3.
DISCLAIMER
I am not qualified to give any opinion on Spanish law.
END OF DISCLAIMER

The proceedings before the Madrid Court of First Instance were instituted in 2013.

I am confused because I find a press article already from 2011 saying that Grünenthal had proposed this amount of 120’000 euro, which the Fiscal now says is a compensation for the damage caused by the infringement of Article 1 of the Spanish Constitution, to be paid to Thalidomide monsters. Remember however that I am totally unqualified to give any opinion on Spanish law.

this brings up on the first page a 2011 article which says that AVITE considers the offer of 120’000 by Grünenthal insufficient. (12)

120’000 can easily be divided in into 12.

And yes, there is a 14 October 2013 press article saying that Grünenthal offered this as an “annual” amount (of 120’000, i.e., 12 monthly payments of 10’000 euro) but that the Spanish Thalidomide monsters rejected this. (13)

So the Spanish Thalidomide monsters rejected an offer of a pension of 10’000 euro per month?

Maybe there is something wrong with my translation, in section 5.2.3 of this message, of part of the 20 May 2015 ABC.es article “El Supremo fallará sobre el caso de la talidomida el 23 de junio” quoted in note 6. (6, again)

Or did AVITE or the press misquote or misreport the contents of the advice of the Fiscal?

If the annual amount of 120’000 euro of which the Fiscal talks is the same amount which was offered by Grünenthal in 2011, i.e., before the 2013 court proceedings were instituted, is the Fiscal then not saying that this offer was satisfactory? But that offer is no longer valid since the would-be beneficiaries of this offer have instituted court proceedings.

These proceedings have demonstrated that the demand of the would-be beneficiaries of the 2011 offer of Grünenthal is prescribed. If the “Tribunal Supremo” annuls the judgment of the Madrid “Audiencia Provincial” and sends the case back to another “Audiencia Provincial”, the latter “Audiencia Provincial” will not be able to condemn Grünenthal to pay this amount without demonstrating how the demands would not be prescribed. But no request / petition in cassation has been filed by the plaintiffs as the case has in fact been instituted by the Fiscal at the “Audiencia Provincial” or the Fiscal at the “Tribunal Supremo” (remember that I am not qualified to give an opinion of Spanish law) in virtue of Article 124 of the Constitution and of Article 11.5 of the Law of Civil Procedure. So the case could not possibly be sent back to another “Audiencia Provincial”?

We are therefore again forced to conclude that the advice of the Fiscal is saying that it is up to the Spanish “Sozialstaat” to pay.

As I said, it is not up to Grünenthal
(it was not up to Grünenthal under the Spanish Constitution under the Franco regime, Constitution which, I suppose, did not say that Spain was a Social state)
to establish or constitute a “Sozialstaat”.

Why does the “Fiscal General del Estado”, the only Fiscal who’s intervening in the proceedings
even if these proceedings would have been instituted by the Fiscal at the “Audiencia Provincial”
(that’s what is meant by the “unity of operation” about which Section 2 of Article 124 of the Constitution speaks)
say that “we” cannot fail to give to the Spaniards affected a solution consistent with national and international law
(“y no podemos dejar de dar una solución coherente con el Ordenamiento Jurídico nacional e internacional a los afectados españoles”) ?

Why does she, the Fiscal, not say that the solution consistent with blahblahblah consists in blahblahblah?

Why does she say that “we” cannot fail to give to Spaniards affected a solution consistent with blahblahblah?

Is that not because she is also ashamed?

The “Fiscal General del Estado” is ashamed of what?

Is she ashamed of the fact that, after half a century, the solution has not yet been provided?

Or does she realise that, as my 16 August 2015 Cebu (Philippines) International Documentary Film Festival (CIDFF) pamphlet concluded,
the “responsible”, the cause, or the culprit of the Thalidomide scandal is
not Grünenthal, the pharmaceutical company that created and sold the drug,
but the governments which, after the French government had banned Thalidomide,
neither did prevent the product being brought onto their markets
nor did, once the product had been brought onto their markets, immediately order its withdrawal from these markets?
(section 1 of this blog-post)

Remember
that Thalidomide was – after the French ban – first marketed in 1957,
that the then-EEC, which was also instituted in 1957, waited three decades, until 1985, to adopt its product-liability directive,
that after Franco had died in 1975, the 1978 Spanish Constitution went on to decree that Spain was a “Sozialstaat”,
that on 01 January 1986 when Spain acceded to the EEC, the product-liability directive was in effect,
n’est-ce pas Jacques H. Herbots ?

Fact is:
Before Thalidomide was ever marketed, i.e., before it was marketed in West-Germany, the product had been banned in France.

The question is therefore not:
Why did Grünenthal continue selling Thalidomide in Spain after it had stopped distribution in most of the rest of Europe in November 1961?

But is:
Why did some governments, starting with the West-German government, not prevent Thalidomide being marketed on their territories?

The Thalidomide story has, in many places, been barely told, says the trailer of the film.

(2)
The forgotten victims
When the Thalidomide scandal erupted in 1961, the drug was soon banned. Yet pregnant women in Spain continued taking it until the 1980s — and the authorities refuse to accept responsibility.
Caroline Scott Published: 3 May 2015http://www.thesundaytimes.co.uk/sto/Magazine/Article1547785.ece

(3)
Culture is the values, beliefs, behaviour, and material objects that together form a people’s way of life. Culture includes what we think, how we act, and what we own. Culture is both a bridge to our past and a guide to the future.
(John J. Macionis, “Sociology”, Prentice Hall, 2003 inr’l ed., p. 61 referring to Wolf Soyinka, “Africa’s Culture Products”, in: “Society”, Vol. 28, No 2, January-February 1991, pp. 32 – 40).

(4)
Cultural forces constantly mould human biology. For example, culture is a key environmental force determining how human bodies will grow and develop. Cultural traditions promote certain activities and abilities, discourage others and set standards of physical well-being and attractiveness. Physical activities, including sports, which are influenced by culture, help build the body. For example, North American girls are encouraged to pursue, and therefore do well in, competitive track and field, swimming, diving, and many other sports […] Why are girls encouraged to excel as athletes in some nations but discouraged from physical activities in others [e.g. Latin America]?
(Conrad Phillip Kottak, “Anthropology – The Exploration of Cultural Diversity”, McGraw Hill, 2000, 8th ed. p. 7)

(11)
Yes, this Section 1 of Article 1 of Spanish Constitution also says that Spain is a “democratic” state.
What “democracy” means, I still don’t know.
“Tot sententiae quot homines!”(There are as many definitions of democracy as there are people who hold them.)
I can only guess that the Spanish Constitution uses this concept of “democracy” as a reaction against the Franco regime.

1.
Thalidomide was definitely known in the year 1938 and [its] defects were noted in Phoenix, AZ (USA) in a medical journal that year. It was known as a cure for Hanson’s Disease and made by [Richardson]-Merrill Co. in [Cincinnati], OH (USA). I don’t know what action was taken, but a young female doctor named Frances Oldham Kersey (or Kelsey) recognized its dangers.
[by] Theodore, Princeton, WV/USA
(reaction under From The Times April 4, 2008 Thalidomide: 50 years on victims unite to seek more compensation Nigel Hawkes, Health Editorhttp://www.timesonline.co.uk/tol/news/uk/health/article3671815.ece

Kelsey was the lady who in 1960 only joined the USofA Food and Drugs Administration (FDA).

Once there, she further delayed thalidomide’s approval (thalidomide was marketed since 1957)
and was given a Presidential award by USofA president Kennedy for that delay.

Wikipedia says
that Kelsey is credited SINCE NINETEEN THIRTY-EIGHT with her interest in teratogens – that is, drugs that cause congenital malformations,
that 1938 was the date of the creation of the FDA,
and that Kelsey managed to be appointed there in 1960http://en.wikipedia.org/wiki/Frances_Oldham_Kelsey

Frances Oldham Kelsey invented thalidomide and was given a Presidential award for this invention by USofA president John F. Kennedy.

2.
Thalidomide was marketed since 1957.

Kelsey was only appointed in the FDA in 1960.

How can she get (all) the credit for having ‘saved’ the US of A from it?

3.
Legal tabloids tell us that thalidomide is an example of the development-risk defence which allows producers to escape liability if they prove that the state of scientific and technical knowledge at the time when they put the product into circulation was not such as to enable the existence of a defect to be discovered, as defined at present “a contrario” (“argument based on the contrary” – denotes any proposition that is argued to be correct because it is not disproven by a certain case, says Wikipedia) in article 15(1)(b) of the 1985 EEC Product Liability Directive, formally Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products.

Dr. Herman Cousy, professor emeritus from the law department of the K.U. Leuven,
has demonstrated in 1996 that the thalidomide scandal cannot be considered to be an example of the development-risk defence
by saying on p. 163, in note 28,
of his paper “The Precautionary Principle: A Status Questionis” published in the “Geneva Papers on Risk and Insurance – Issues and Practice”, also available on the website of the “Geneva Association”, l’”Association Internationale pour l’Etude de l’Economie de l’Assurance”, the leading international think tank of the insurance industry, that :
“One often cites the Thalidomide (Contergan) case as an example of a development risk situation, although it appears that when thalidomide was brought onto the German market, the product had been banned in France. Can it be readily upheld, under such circumstances, that the conditions for a development risk situation were fulfilled?”https://www.genevaassociation.org/media/231494/ga1996_gp21%2879%29-cousy.pdf

This means that the primary cause of the thalidomide scandal is the fact that after the French Leviathan had banned thalidomide, other Leviathans, whose main reason for existence would be to “protect” their citizens, did not prevent the product being brought onto “their” markets nor did they immediately order the withdrawal of thalidomide from “their” markets, once the product appeared there after the French ban.

The primary cause is opposed to the (Aristotelian) efficient of the thalidomide scandal, the tablet.

For Aristotle, 25 centuries ago, the efficient cause is the being in act who brings about the change. And Aristotle went on to give the example of the sculptor who makes the … statue. Was this example devised 25 centuries ago with thalidomide monsters in mind?

Upon assuming their mandates in the EU parliament, Podemos’s MEPs showed that we can attack the oligarchic nightmare with which thalidomide monsters are faced in the EU, due to the 1957 need of the EEC caste of the thalidomide scandal for its lunatic 1985 product-liability directive.

The EEC needed thalidomide, but the EU rejects the drug’s victims.

POINT OF ORDER
According to Chambers Giant Paperback Dictionary, “monster” can be defined as a deformed person, plant or animal.
Hence, anyone deformed by thalidomide, including this blogger, is by that definition a “monster.”
This blogger is also such a monster.
If he uses the noun “monster”, this is for the reason which makes you, dear reader, afraid of it.
END OF POINT OF ORDER

“Podemos” means “we can” in Spanish.

The Spanish Podemos (“yes, we can” change things by sweeping away the corruption of the “caste” of the elites) movement is an anti-establishment movement which emanates from the “indignados” who in the 2011–12 Spanish protests demanded a radical change in Spanish politics. “You can – but you don’t want to” … attack the “oligarchic nightmare” with which you are faced, was the battle cry then.

The movement complains of the post-Franco (Franco ruled Spain from 1939 until his death in 1975) oligarchic regime and has morphed 10 months ago into a populist far-left wing political party, whose supporters nevertheless include former supporters of the ruling centre-right Partido Popular (PP) of Mariano Rajoy, the prime Minister of the King of Spain.

As it stressed before and during the campaign for the elections for the EU parliament in May 2014, Podemos wants to encourage the Spaniards to come to realise that they can change things and that if the voter puts Podemos into power, the party will show the world how to change these things.

The action plan of Podemos is a response to the collapse of an unjust, cynical and oligarchic society under the weight of corruption.

The citizen is being scandalised by the corruption of the regime which has brought about its collapse. This collapse has resulted in austerity by which the citizen is being crushed.

Podemos wants to replace corruption and austerity by the renationalisation of recently privatised state enterprises, the orderly restructuring of debt, the revision of the 1978 constitution and the repeal of the monarchy.

Podemos offers a consistent approach to post-crisis economic management by recognising a simple truth about the eurozone in late 2014, that is, by recognising that it is logically inconsistent for the single currency to enter a secular stagnation and not restructure its debt, said Wolfgang Münchau on 23 November 2014 in the Financial Times, a newspaper.

Münchau added that what Podemos still needs to do is to offer a coherent vision of life after a debt restructuring. (1)

Podemos’s hobbyhorse or favourite subject is the corruption of the “caste” of the elites.

The party promises a new politics, beyond the left-right paradigm.
Ergo, as indicated above, former PP supporters feel at home in Podemos.

In May 2014, Podemos won 5 of the 54 Spanish seats in the EU parliament.

Upon assuming their mandates in said parliament in November 2014, Podemos’s members of the European parliament (MEPs) immediately attacked the oligarchic nightmare with which thalidomide monsters are faced in the EU.

Indeed, as La Verdad, a regional newspaper located in the Spanish city of Murcia, reported on 19 November 2014, two of Podemos’s MEPs, Lola Sánchez and Pablo Echenique, have donated 6’000 euro of their salaries to the Spanish thalidomide monsters (this blogger is also such a monster, be it from another EU member state) to allow them to a file a petition before the EU parliament. (2)

The Spanish news agency EFE explained on 21 November 2014 that the petition is to be filed “en breve” (this blogger who doesn’t speak Spanish supposes this means “shortly” or “before long” and that this does not mean “through an express procedure”) before the committee on petitions of said parliament. (3)

UNEQUAL TREATMENT

As a Spanish MEP, who’s not prepared to invest her capital in thalidomide monsters, of another party had said on 30 October 2014, the petition will invoke, or will complain of, the unequal treatment of thalidomide monsters by the different EU member states. (4)

The Spanish thalidomide monsters do not understand why they are to file the petition, they are filing the petition “because that was recommended by all MEPs [they] have recently met, who said they were going to support, to denounce the situation of the Spanish [ONLY] victims, “con respecto a” (this blogger does not speak Spanish. does this mean, vis-à-vis, with regard to, or with respect to?) the other EU member states and the world”. (5)

This blogger understands that article 227 (ex article 194 TEC) of the treaty on the functioning of the European union provides that any citizen of the EU, or resident in a member state, may, individually or in association with others, submit a petition to the EU parliament on a subject which comes within the European union’s fields of activity and which affects them directly.

This blogger quoted a Spanish MEP as saying that the petition will invoke, or will complain of, the unequal treatment of thalidomide monsters by the different EU member states. (4, again)

As the blogger understands it, the complaint will come under two headings.
One the hand, the complaint will complain that the number of thalidomide monsters recognised in Spain is (proportionally to the Spanish population) too low vis-à-vis the number of monsters recognised in other EU member states.
On the other hand, they will complain of the fact that Spanish monsters did not and are still not receiving compensation or pensions. (4, again) (6) (7)

Under the first heading the complaint should argue that in Germany approximately 2’700 victims are recognised and enjoying pensions, in the UK of NI-and-GB approximately 500 victims are recognised and enjoying pensions, in Italy approximately 300 victims are recognised, whereas of the estimated 1’000 victims in Spain only 24 victims are recognised by the health Ministry of the King of Spain.

Under the second heading, the complaint should argue that whereas no Spanish victim did yet receive any compensation, the victims in Germany and in the UK of NI-and-GB are enjoying pensions.

As a non-recognised thalidomide monster from the southern Low Countries (his father, a medical doctor, gave thalidomide on purpose, that is, in bad faith, to his (this blogger’s) mother), who had to flee fourteen years ago to South-East Asia, where life is much cheaper, this blogger hopes that this petition may be beneficial for him also, although two quotations above make him doubt

The quoted EFE press release, the first quote which makes this blogger doubt, said indeed that the petition would “denunciar la situación de las víctimas … españolas [ONLY]“. (3, again)

The second quote which makes this blogger doubt is that the Spanish thalidomide monsters themselves do not understand why they are filing this petition but are only filing it “because that was recommended by all MEPs [they] have recently met, who said they were going to support, to denounce the situation of the Spanish [ONLY] victims, “con respecto a” the other EU member states and the world”. (5, again)

To repeat, with these two caveats (the snippets just quoted from the documents referred to in notes (3) and (5)), this blogger who suffers the nationality of the southern Low Countries, where he was born out of parents with both the same nationality of the same Low Countries, hopes that this petition may be beneficial for him, as a non-recognised thalidomide monster who is still waiting for his first Belgian franc of compensation, also.

The blogger understands indeed that the application of EU law does not vary according to the member state of the nationality of the subject to whom that law is to be applied.

That’s what equal treatment of EU subjects is about, isn’t it?

ANALYSIS TO CONDUCT

The blogger will now sketch the analysis which the committee on petitions of the EU parliament will have to conduct prior to replying to the petition.

Thalidomide first appeared on the West-German market in 1957, that is the year that the original founding treaty of an international organisation was signed at Rome, Italy, and that organisation was called the … European Economic Community.

A coincidence?

Why did the EEC legislator, the “caste” of EEC heads of state and guv’mint gathered in the EEC council, then wait three decades to adopt its 1985, that’s ten years after Franco’s death, five months before Spain’s accession to the EEC, product-liability directive, formally Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products?

Why did that “caste” wait so long to make European law become the corner stone (“la pièce maîtresse”) of national consumer-protection legislations? (8)

Was that not in order not to make it too obvious that the thalidomide scandal was necessary to achieve this?

Was that not in order to hide this co-incidence?

STRUCTURING, NOT RE-STRUCTURING, THE DEBT TO THALIDOMIDE MONSTERS

But in the Spanish city of Cádiz, it’s the lunatics who are running the asylum, said this blogger’s 20 November 2014 comment in English in La Vanguardia, a newspaper. (9)

Are the lunatics also running the EU parliament’s asylums in Brussels and Strasbourg?
We’ll see!

A non-lunatic anti-establishment movement as a response to the failure of the oligarchic regime, that’s just what the EU needed – at this moment – and long before that.

“Yes, we can” change things by sweeping away the corruption of the “caste” of the elites and by attacking the oligarchic nightmare with which thalidomide monsters are faced in the EU due to the EEC’s 1957 need of the thalidomide scandal for its lunatic 1985 product-liability directive.

Upon assuming their mandates in the EU parliament, Podemos’s MEPs immediately responded to one of the failures of the oligarchic regime, that is, to the nightmare of an unjust, cynical and oligarchic EEC, now EU, which needed thalidomide for its lunatic policies but which rejects the thalidomide monsters.

Legal tabloids tell us that thalidomide is an example of the development-risk defence which allows producers to escape liability if they prove that the state of scientific and technical knowledge at the time when they put the product into circulation was not such as to enable the existence of a defect to be discovered, as defined at present “a contrario” (“argument based on the contrary” – denotes any proposition that is argued to be correct because it is not disproven by a certain case, says Wikipedia) in article 15(1)(b) of the 1985 EEC Product Liability Directive, formally Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products.

Dr. Herman Cousy, professor emeritus from the law department of the K.U. Leuven,
has demonstrated in 1996 that the thalidomide scandal cannot be considered to be an example of the development-risk defence
by saying on p. 163, in note 28,
of his paper “The Precautionary Principle: A Status Questionis” published in the “Geneva Papers on Risk and Insurance – Issues and Practice”, also available on the website of the “Geneva Association”, l’”Association Internationale pour l’Etude de l’Economie de l’Assurance”, the leading international think tank of the insurance industry, that :
“One often cites the Thalidomide (Contergan) case as an example of a development risk situation, although it appears that when thalidomide was brought onto the German market, the product had been banned in France. Can it be readily upheld, under such circumstances, that the conditions for a development risk situation were fulfilled?”https://www.genevaassociation.org/media/231494/ga1996_gp21%2879%29-cousy.pdf

This means that the primary causeof the thalidomide scandal in Spain is the fact that after the French Leviathan had banned thalidomide, its neighbour across the Pyrenees did not prevent the product being brought onto “its” markets nor did it immediately order the withdrawal of thalidomide from “its” markets, once the product appeared there after the French ban.

The primary cause is opposed to the (Aristotelian) efficient of the thalidomide scandal, the tablet. For Aristotle, 25 centuries ago, the efficient cause is the being in act who brings about the change. And Aristotle went on to give the example of the sculptor who makes the … statue. Was this example devised 25 centuries ago with thalidomide monsters in mind?

The primary cause of the thalidomide scandal is the fact that after France had banned thalidomide, other countries did not prevent, nor react to, the product being brought onto “their” markets

There is no legal basis – in the Conterganstiftung Act – for said Stiftung to be providing benefits (“Leistungen”) worldwide to thalidomiders.

As a matter of fact, the Conterganstiftung would be a worldwide provider of benefits since 2009.
In 2013, the number of beneficiaries of these benefits was however still the same, 2’700, as in 2008.

After having exonerated itself from liability in the scandal, but not from future payments to thalidomide monsters
and after having exonerated Chemie Grünenthal GmbH, the maker of thalidomide, from future payments, after the initial joint funding of the Conterganstiftung, with the West-German Leviathan,
the West-German federal constitutional court decreed in a 1976 judgment that by setting up the Conterganstiftung and providing alone future funding of said Stiftung,
the West-German Leviathan has not recognised its liability in the scandal.

In order to make sure that the future increases of capital of said Stiftung by the (West-)German Leviathan, could not or cannot be interpreted as recognition of liability on its part, said Leviathan is managing said Stiftung,
which it is alone funding,
that is,
said Leviathan is the only capital provider of said Stiftung,
alone, that is,
said Leviathan is managing said Stiftung without any intervention of Grünenthal.

“Contergan” was the commercial name of thalidomide in Germany.
The “Conterganstiftung” is the Contergan Foundation which was, as we will see, set up by the West-German legislator in 1971.

“Tal vez sea una invencible razón económica y legal la que impide que el Estado indemnice a la víctimas de la Talidomida.”,
Maybe there is some reason of higher economic and social order which prevents the state from indemnifying the thalidomide monsters (hereafter, TMs),
says Juan Antonio Megas in a 28 October 2014 “From my Fishbowl” (“Desde mi pecera”) column under the title “Stop and think” (” Párate a pensar”) in La Opinión de Murcia.

Perhaps the Conterganstiftung can indemnify Spanish TMs, as Grünenthal was arguing in court and as Grünenthal reiterated after the October 2014 judgment of the Madrid Provincial Court overturning the November 2013 judgment of the Madrid Judge of First Instance?

No, here is no legal basis – in the Conterganstiftung Act – for said Stiftung to be providing benefits (“Leistungen”) worldwide to thalidomiders.

If this blogger, who is also such a monster, uses the noun “monster” in “thalidomide monster”, this is for the reason which makes you, dear reader, afraid of it. (1)

I said in that 03 November 2014 post that in this post I would attempt to do three things.

One, to answer to the 24 october 2014 question of the Spanish thalidomiders
“¿Quién dirige la fundación alemana Contergan, Grünenthal o el Estado alemán?”
Who manages the German Contergan Foundation, Grünenthal or the German federal state? (2)

Two, to explain what Juan Antonio Megas meant on 28 October 2014 in an “From my Fishbowl” (“Desde mi pecera”) column under the title “Stop and think” (”Párate a pensar”) in La Opinión de Murcia, when he said that:
“Tal vez sea una invencible razón económica y legal la que impide que el Estado indemnice a la víctimas de la Talidomida”,
Maybe there is some reason of higher economic and social order which prevents the state from compensating the TMs. (3)

Three, to explain with two judgments of the German federal constitutional court, the “Bundesverfassungsgericht”, hereafter BVG, and some pieces of German legislation why the Conterganstiftung will NEVER compensate Spanish TMs, contrary to what Grünenthal was arguing in court and reiterated after the 22 October 2014 judgment of the Madrid Provincial Court, overruling the 20 November 2013 judgment of the Madrid Judge of First Instance, who (the latter) had ordered Grünenthal to pay, to the victims as recognised by Spain’s Health Ministry, 20’000 euro for each percentage point of disability of the victims.

I thus said in my 03 November 2014 post that the third thing I would examine in this post is whether the Conterganstiftung can provide benefits (“Leistungen”) to TMs who have no link to Germany. I also gave in my previous post a preview of how I would reply to this (third) question.

This was that preview:

“Until 22 March 2009, the Conterganstiftung was providing benefits to the 2’700 thalidomiders living in Germany or born in West Germany, says the bill leading to the 23 March 2009 second revision of the Conterganstiftung Act.
“This 23 March 2009 second revision of the Conterganstiftung Act would have extended those benefits to thalidomiders not living or born in Germany, although the act does not say so explicitly – or implicitly. I am probably totally unqualified or my German is too bad, but I am unable to find in the 2009 [Act] that it is extraterritorially applicable to TMs who have no link to Germany.
“As of today, or rather as of 12 March 2013, date of the bill leading to the third revision of the Conterganstiftung Act, how many monsters are, or rather were, receiving benefits from said Stiftung?”

2.
In this post, I will start with developing the third thing I said in my 03 November 2014 post I would attempt in this post, that is, the question whether the Conterganstiftung, the German thalidomide foundation, will ever pay benefits (“Leistungen”) to TMs who have no link to Germany. (SECTION 3)

Then I will look at who’s the culprit in the thalidomide scandal. (SECTION 4)

Third, I will look at the second thing I would attempt in this post, according to my 03 November 2014 post, that is, I will look at what Juan Antonio Megas meant with his 28 October 2014 statement, in an “From my Fishbowl” (“Desde mi pecera”) column under the title “Stop and think” (”Párate a pensar”) in La Opinión de Murcia, that:
“Tal vez sea una invencible razón económica y legal la que impide que el Estado indemnice a la víctimas de la Talidomida”, (3)
Maybe there is some reason of higher economic and social order which prevents the state from compensating the TMs. (SECTION 5)

Fourth, and finally, I will do the first thing I was going to do in this post, according to my 03 November 2014 post, that is, I will reply to the 24 October 2014 question of the Spanish thalidomiders:
“¿Quién dirige la fundación alemana Contergan, Grünenthal o el Estado alemán?”
Who manages the German Contergan Foundation, Grünenthal or the German federal state? (SECTIONS 6 – 9)

3.
3.1
The first thing I do in this post is developing the third thing I said in the 03 November 2014 post I would attempt in this post, that is, to reply to the question whether the Conterganstiftung, the German thalidomide foundation, will ever pay benefits (“Leistungen”) to TMs who have no link to Germany.

We are being told that the 2009 German legislator, legislating the second revision of the Conterganstiftung Act, WOULD have made its law extraterritorially applicable – without stating so explicitly.

In my 03 November 2014 post, I gave already this preview of my argument:

“Until 22 March 2009, the Conterganstiftung was providing benefits to the 2’700 thalidomiders living in Germany or born in West Germany, says the bill leading to the 23 March 2009 second revision of the Conterganstiftung Act.
“This 23 March 2009 second revision of the Conterganstiftung Act would have extended those benefits to thalidomiders not living or born in Germany, although the act does not say so explicitly – or implicitly. I am probably totally unqualified or my German is too bad, but I am unable to find in the 2009 [Act] that it is extraterritorially applicable to TMs who have no link to Germany.
“As of today, or rather as of 12 March 2013, date of the bill leading to the third revision of the Conterganstiftung Act, how many monsters are, or rather were, receiving benefits from said Stiftung?”

If the German legislator wanted to make its Act extraterritorially applicable from 2009 onwards, it should have stated so explicitly in its 2009 second revision of the Conterganstiftung Act – which it didn’t.

I am probably totally unqualified or my German is too bad, but I am unable to find in the 2009 Act that it is extraterritorially applicable to TMs who have no link to German.

When replying to the question as to the identity of the manager of the Conterganstiftung in SECTIONS 6-9 of this blog post, I will refer to a 1976 judgment of the German federal constitutional court (BVG) which can be interpreted as saying that the 1971 West-German legislator broke with its 1971 Conterganstiftung Act new ground in constitutional law, a part of public law, by introducing the private-law concept of “novation”, which public law seems only to recognise or acknowledge in public “international” law relating to the creation and transfer of territorial sovereignty, into constitutional law.

The extraterritorial applicability of the Conterganstiftung Act since 2009 is also an example of the German, no longer West-German, legislator breaking new ground in constitutional and international law.

Motivation
A General Part
I Object and content of the bill
SNIP
At present 2’700 [TWO THOUSAND SEVEN HUNDRED] people damaged by Contergan are receiving benefits from the Conterganstiftung for handicapped persons which was renamed in 2005.

This is the bill leading to the third revision of the Conterganstiftung Act which the “Bundestag”, the lower house of the German parliament, on 25 April 2013 UNANIMOUSLY adopted (The upper house, the Bundesrat, also adopted the bill, so that it became an act of parliament, but I don’t know how the vote went there) to which I will refer:

Motivation
A General Part
I Object and content of the bill
1 […[
2. Deduction of payments by foreign states
The Conterganstiftung Act provides benefits (“Leistungen”) worldwide to people damaged by Contergan.
SNIP
Of approximately 2’700 recipients of the benefits, 10% live at present abroad. Payments which the aliens living abroad and the aliens living in Germany receive or have received due to thalidomide damage are at present only being into account on the payments by the Conterganstiftung from which they will be deducted when these payments are payments from other possibly liable parties – thus in particular pharmaceutical companies (article 15, section 2).

3.2.
In the 2009 bill leading to the 2009 second revision of the Conterganstiftung Act, some members of the German legislature, the proponents of the bill, said, on p. 7 in the first paragraph of object and contents of the bill,
that:
“At present 2’700 [TWO THOUSAND SEVEN HUNDRED] people damaged by Contergan are receiving benefits from the Conterganstiftung for handicapped persons which was renamed in 2005.”
(“Begründung A. Allgemeiner Teil I. Zielsetzung und Inhalt des Gesetzentwurfs p. 7)

3.2.1.
Note that this bill leading to the 2013 third revision of the Conterganstiftung Act DOES NOT SAY at this start of its motivation on p. 4 that the Conterganstiftung Act provides benefits worldwide to people damaged by products made with thalidomide, but sold under ANOTHER NAME than “Contergan”.

Ergo, the 2013 Conterganstiftung Act, resulting from this third revision, does not say that the Conterganstiftung provides benefits to people damaged by a product sold under another name than Contergan.

The text resulting from this third revision includes the second revision which, as we have seen in Section 3.1, does also not say anything about extraterritorial applicability.

(Is the correct English: “The text resulting from this third revision includes the second revision which, as we have seen in Section 3.1, does neither say anything about extraterritorial applicability”?)

3.2.2
If you would say that what is meant is “people damaged by a product containing thalidomide”, then please continue reading the section:
“Of approximately 2’700 [TWO THOUSAND SEVEN HUNDRED] recipients of the benefits, 10% live at present abroad. […]”

How many?

Two thousand seven hundred, that is the same number as the number of beneficiaries before the 2009 second revision.

In 2013, that is, four years after the Conterganstiftung Act would have received worldwide application, the Conterganstiftung was still providing benefits to two thousand seven hundred victims of Contergan.

It is true that it adds that 10% of these beneficiary victims of Contergan live at present abroad.

But since the number of beneficiaries, 2’700, has remained the same, one must conclude that those 10% were already included in the 2’700 victims to whom the Conterganstiftung was providing benefits before the 2009 second revision of the Conterganstiftung Act.

This means that the Conterganstiftung up to March 2013, date of the third revision of the 1971 Conterganstiftung Act, only provided benefits to TMs who have a link to Germany, although the intention of the 2009 second revision of the Contergasnstiftung Act WOULD have been to extend those benefits to TMs without any link to Germany.

If the German legislator wants to make its Act extraterritorially applicable, it should state so explicitly, which it didn’t in 2009.
(But then again, how can foreign nationals, who don’t have any link to Germany be bound by this?)

To repeat:
The number of the victims to whom said Stiftung provided benefits before the 23 March 2009 Act, the second revision of the Conterganstiftung Act,
TWO THOUSAND SEVEN HUNDRED,
was FOUR YEARS LATER,
when the 12 March 2013 bill leading to he third revision of the Conterganstiftung Act was introduced,
TWO THOUSAND SEVEN HUNDRED
that is,
still the same.

The text resulting from this third revision includes the second revision which, as we have seen in Section 3.1, does also not say anything about extraterritorial applicability.
AGAIN CORRECT MY ENGLISH, IF NECESSARY, INTO:
“The text resulting from this third revision includes the second revision which, as we have seen in Section 3.1, does neither say anything about extraterritorial applicability.”

There is no legal basis – in the Conterganstiftung Act – for said Stiftung to be providing benefits (“Leistungen”) worldwide to thalidomiders.

Maybe this blogger was not totally erring when he said in the 07 December 2009 title of a blog post that the Conterganstiftung is ridiculous and malicious.

4.
After having demonstrated in the previous section that the Conterganstiftung will NEVER pay benefits (“Leistungen”) to TMs who have no link to Germany,
I do now look at the culprit in the thalidomide scandal.

Dr. Herman Cousy, professor emeritus from the law department of the K.U. Leuven,
has in 1996 lifted the veil on the truth about the thalidomide scandal
by saying on p. 163, in note 28,
of his paper “The Precautionary Principle: A Status Questionis” published in the “Geneva Papers on Risk and Insurance – Issues and Practice”, also available on the website of the “Geneva Association”, l’”Association Internationale pour l’Etude de l’Economie de l’Assurance”, the leading international think tank of the insurance industry, that :

“One often cites the Thalidomide (Contergan) case as an example of a development risk situation, although it appears that when thalidomide was brought onto the German market, the product had been banned in France. Can it be readily upheld, under such circumstances, that the conditions for a development risk situation were fulfilled?”(4)

This means that the primary cause – as opposed to the efficient cause, the tablet, (5) – of the thalidomide scandal is the fact that after the French Leviathan had banned thalidomide, other Leviathans did not prevent the product being brought onto “their” markets nor did they immediately order the withdrawal of thalidomide from “their” markets, once the product appeared there after the French ban.

Professor Cousy thereby clearly demonstrates that thalidomide is not a “catastrophe” caused by Grünenthal, against which nobody could have done anything – indeed the French Leviathan did something by banning the product – but a “scandal” against which the non-French Leviathans didn’t do anything.

5.
After having demonstrated in the previous section that the thalidomide scandal was caused by those Leviathans which did not prevent the product being brought onto “their” markets and did not immediately order the withdrawal of thalidomide from “their” markets, once the product appeared there after the French ban,
I do now turn to the reason of higher economic and social order to which Juan Antonio Megas referred on 28 October 2014 in an “From my Fishbowl” (“Desde mi pecera”) column under the title “Stop and think” (” Párate a pensar”) in La Opinión de Murcia, when he said that:

“Tal vez sea una invencible razón económica y legal la que impide que el Estado indemnice a la víctimas de la Talidomida”,
Maybe there is some reason of higher economic and social order which prevents the state from compensating the TMs. (3, again)

Compensation can result from criminal law or civil law.

In criminal law, the proof of a crime is required.
In civil law, the proof of a tort or of a breach of contract is required.

Section 4 has demonstrated that the crime or tort was committed by Leviathan, not by Grünenthal, who (the former) is therefore the culprit in the thalidomide scandal.

Leviathan cannot accept this. It cannot admit that it needed the thalidomide scandal to extend its welfare state and its product-liability legislation.

The parents of the TMs cannot accept this because this implies that these parents themselves also were aware of the dangers of thalidomide in early pregnancy.

Whereas the parents initially did not reply to the question of their monsters as to why they were missing limbs, once the monsters were aware of the fact that the cause of this absence was thalidomide, the parents indoctrinated their monsters that the manufacturer Grünenthal, not Leviathan, that is, not themselves, was the culprit.

Sections 6-9 of this blog post will demonstrate that the BVG therefore had no other option in 1976 and 2010 but to hide the liability in the thalidomide scandal.

6.
After having tried to find the reason of higher economic and social order which prevents the state from compensating the TMs,
I do now turn to the identity of the manager of the Conterganstiftung. (2, again)

As Professor Cousy indicates (4, again), the Leviathans knew from their French colleague that there was a “slight” “problem” with thalidomide.

During the thalidomide scandal, those Leviathans did nevertheless not order the product to be removed from their markets.

After the thalidomide scandal, the West-German parents of some TMs reached agreement with Grünenthal on some compensation.

That’s what the rule of law provides: When one individual is injured by another (or by another’s product), the compensation of the former takes the form of compensation by the latter, except if the latter can convince the former, or the courts, that he can invoke an excuse. And if the parties can reach an agreement on this compensation, then the bureaucrats of the courts and of guv’mint don’t have to intervene.

All that happened before the Conterganstiftung was set up in 1971.

In order to exculpate both Grünenthal, which is indeed innocent in the thalidomide scandal, and itself, the West-German Leviathan, who is not innocent at all in the thalidomide scandal, realised that the best way to obscure its own liability was to participate in the compensation of TMs, or rather that in order to achieve that objective, it also had to carry the burden of the compensation, no not the burden of compensation of TMs, but the burden of providing effective help to speed up the integration of TMs into society (“Hilfe […] um ihre Eingliederung in die Gesellschaft zu fördern”), says SECTION 16 of the 1976 judgment of the German federal constitutional court which I will quote later in this section.

In that way, the West-German Leviathan could thank Grünenthal for accepting not to point the finger at Leviathan when discussing the liability for the scandal. Grünenthal accepted not contesting that it had the sole liability for the scandal. (Is this what is called in the USofA the argument of “nolo contendere”, which is Latin for “I don’t want to contest”?)
Just like Grünenthal originally did not want to contest its liability vis-à-vis the West-German parents of some TMs which whom (the parents) it had reached agreement on some compensation.

That’s why by an Act of 19 December 1971, the Conterganstiftung was set up. The starting capital of said Stiftung was provided jointly by the West-German Leviathan and by Grünenthal. Said Leviathan later provided more capital out of taxation, not out of money set aside to cover the payments due to TMs. Grünenthal later VOLUNTARILY provided some more capital.

Most of the parents who had reached agreement with Grünenthal were not happy with this overruling by the West-German Leviathan of their agreements with Grünenthal and filed court cases.

That’s how the case ended up in the courts, first in the lower courts and finally, in 1976, in the German federal constitutional court, BVG, which had the opportunity to explain its 1976 judgment in a 2010 judgment.

7.
Langenscheidt’s 2006 New College Dictionary German tells us that “liability” is “Schuld” or “Haftung” in German
and that the German adjective “verantwortlich” means “responsible, liable”.
(The noun “Verantwortlichkeit”, “Verantwortung”, thus means responsibility, liability.)

None of these four nouns – “Schuld”, “Gewähr”, “Verantwortung”, and “Haftung” – appear in the 1976 judgment in relation to the thalidomide scandal.

The 1976 judgment does thus not discuss the liability for the thalidomide scandal.

The 2010 judgment discusses in SECTION 23 the argument of the failing guv’mint control of medicines.
And then says, out of the blue, in its final sentence of that SECTION that the Act by which the Conterganstiftung was created was not connected to any recognition of liability (“Schuldanerkenntnis”, “Schuld-Anerkenntnis”) by guv’mint.

The 2010 judgment does thus merely state that guv’mint had not recognised its liability with its 1971 Conterganstiftung Act.

The 2013 bill speaks on p. 5
when dealing in its motivation with the purpose or object and contents of the bill and more specifically with the taking into account of payments by foreign guv’mints
about payments by other possibly liable parties – consequently, in particular pharma companies
(“Zahlungen von “anderen möglicherweise Verantwortlichen” – also insbesondere von
Pharmafirmen” (“also” in German does not have the same meaning as its English homonym.)http://dip21.bundestag.de/dip21/btd/17/126/1712678.pdf

Who’s then the (main) “Verantwortliche” (liable party), the main “Schuldiger” (culprit), who will have “Haftplicht” (“Haft-Plicht” (liability)) because he hasn’t “gewährleistet” (“gewähr-leistet”, ensured) that a medicine which had been banned in France was not put on the West-German store shelves?

The bill does not reply.

I, Ivo, can only draw the reader’s attention to the fact that the bill discusses this issue in a section whose title is “The taking into account of payments by foreign … states” (“Anrechnung von Zahlungen ausländischer Staaten”) and that this seems to mean that the main “Verantwortliche” (liable party), for the German legislator, is indeed the Enemy, the State.

In the southern Low Countries, it was being taught in 2010, THAT IS ONLY FOUR YEARS AGO, that we should not expect too much from tort law [because it cannot reach its objectives of compensating TMs] and that there therefore is in THE LAST FEW YEARS [that is, the last few years vis-à-vis 2010] a tendency, and not only in the southern Low Countries, to try to achieve the compensation of damages through particular compensation systems whereby amounts of money set aside for a specific purpose (“fondsen” in Dutch) play an important role. (6)

I understand this as meaning that since the cause of damages cannot be ascertained, “our” enlightened society, and not only in the southern Low Countries, has decided to no longer look for the culprit but to award damages on the basis of … solidarity.

Concerning the Conterganstiftung Act of 1971, that’s FORTY YEARS ago, i.e., not “in the last few years” vis-à-vis 2010, the German federal constitutional court demonstrates in its judgment of 08 July 1976, that the German legislator went, by instituting the “Conterganstiftung” in 1971, already MUCH FURTHER than what was being taught in the southern Low Countries as happening there, but not only there, in THE LAST FEW YEARS only.

That legislator did not set money aside, but ensured – or so it thinks – that the German tax collector would extract enough money from the sheeple to pay
not “Sozialrenten”
but additional pensions (“Zusatzleistungen”)
to TMs.

And once we were vis-à-vis 2010, not in the last few years, but in 2013, the German legislator said in its bill leading to the third revision of the Conterganstiftung Act that the main “Verantwortliche” (liable party) is, for this legislator, indeed the Enemy, the State.

8.
After having completely dodged the issue of responsibility or liability for the thalidomide scandal, which guv’mint caused, and which the judgment labels a “catastrophe”,
the first sentence of SECTION 112 of the 1976 judgment says:

” The Conterganstiftung Act is being characterised by the fact that it withdraws or takes way (“entziehen”, “ent-ziehen”) one group of cases of injury or rather one group of cases of damage (“Schadensfällen”) from the general private-law system of settlement (“allgemeinen privatrechtlichen Ordnungssystem”) and [transfers it to] a system where the settlement of that group is subjected (“unterstellen”) to a special legal arrangement (“eine gesetzlichen Sonderregelung”).”

The Act would have achieved the betterment of the position of TMs by withdrawing them from, or taking away from them, the general private-law system of settlement and by forcing them into the straitjacket of settlement through a special legal arrangement.

What is so special about that group that it has to be denied all possibilities of obtaining compensation through the usual legal avenues?

Remember that the judgment completely dodges the issue of the liability for the thalidomide scandal.

9.
The question of Avite is:
“Who manages the German Contergan Foundation, Grünenthal or the German federal state?”

The answer is:

After having exonerated itself from liability in the scandal, but not from future payments to TMs
and after having exonerated Grünenthal from future payments, after the initial joint funding of the Conterganstiftung, with the West-German Leviathan,
the West-German federal constitutional court decreed in a 1976 judgment that by setting up the Conterganstiftung and providing alone future funding of said Stiftung,
the West-German Leviathan has not recognised its liability in the scandal.

In order to make sure that the future increases of capital of said Stiftung by the (West-)German Leviathan, could not or cannot be interpreted as recognition of liability on its part, said Leviathan is managing said Stiftung,
which it is alone funding,
that is,
said Leviathan is the only capital provider of said Stiftung,
alone, that is,
said Leviathan is managing said Stiftung without any intervention of Grünenthal.

End of the answer.

I do now outline how I arrive at this answer.

The German federal constitutional court, BVG, had to explain in a judgment of 08 July 1976 why the German federal republic
provided jointly with Chemie Grünenthal GmbH (starting) capital for the “Conterganstiftung” in 1971
and exonerated Chemie Grünenthal GmbH for any future payments which would be supported by said republic.

In SECTION 4 of its judgment of 26 February 2010, the BVG “summarised” its 1976 judgment as saying:
“the 17 December 1971 Statute has changed the form of the claims of private law into claims arising from the law”
(“Umformung der privatrechtlichen Vergleichsforderungen in gesetzliche Leistungsansprüche nach dem Gesetz”
– sections 118 and others of the 1976 judgment have also used the verb “umstallen” instead of “umformen” and nouns “Umstaltung” and “Umformung”.) (7)

SECTION 75 of the 1976 judgment says that the Conterganstiftung was arguing in court that it leaves no doubt that the monsters are better off with this “Umformung” or “Umstaltung”.

SECTION 120 of the 1976 judgment says that there is a Section 120 of that judgment says that there is an unbridgeable tension [sic] (eine “unaufhebbaren Spannungslage”) between
the area of freedom of the individual (der “Freiheitsraum des Einzelnen”)
and the requirements of the order imposed by way of straitjacket by the welfare state (die “Anforderungen der sozialstaatlichen Ordnung”)
and that this requires the supersession of private autonomy to settle claims resulting from torts.
(“Die Ersetzung der autonomen Regelungsbefugnis muß der unaufhebbaren Spannungslage zwischen dem Freiheitsraum des Einzelnen und den Anforderungen der sozialstaatlichen Ordnung gerecht werden”.)

To achieve the aim of exonerating Chemie Grünenthal GmbH from any future payments to TMs,
the Conterganstiftung Act says in Part I §2, 2, quoted in SECTION 16 of the 1976 judgment, that its aim
(is not to compensate TMs, but that it)
is to provide effective help to speed up the integration of TMs into society (“Hilfe […] um ihre Eingliederung in die Gesellschaft zu fördern”).

SECTION 129 of the 1976 judgment, goes on to qualify this “Umformung” or “Umstaltung” as a “novation”
(“Umschaffung”) resulting in … “subrogation”.

There was thus a “novation”
of the agreements reached between the manufacturer of thalidomide Chemie Grünenthal GmbH and some victims
by an Act
by which said GmbH was “subrogated” by the German Leviathan.

This would be a “novation” accompanied by or with a “subrogation”.
If you can understand this, please explain this to me.

This principle of “subrogation” is, says the court, implemented or realised in many places, or exists on those places, in the German legal order.
(“Dieses Prinzip der Subrogation ist in unserer Rechtsordnung an mehreren Stellen verwirklicht.”)

Ivo: At which places? And also in public law?

Ivo: In both English and German (and many other) private law, the concept of “novation”
– which substitutes a new CONTRACT for an existing contract which (the latter) is thereby being discharged –
requires the consent of all parties.

In public law, decrees the court, no one can complain that the so-called “novation” occurred without her consent when such “novation” is in the interests of one party, in this case the claimants of the pensions.

Indeed, the individual claims are integrated (“eingebunden”) in a global settlement and the claimants of the pensions have obtained a more reliable debtor, Leviathan which can better take care of this task, says the court.

The court continues by claiming that the Act has its origin in the needs of the TMs for aid or assistance (“Hilfe”). That’s why their legal position (“Rechtsposition”) has been improved in their interests.

Therefore, says the court, the pensions cannot be compared with “Sozialrenten” because they have first of all to provide care.
They are not “Sozialrenten” but additional pensions (“Zusatzleistungen”).

The judgment concludes by saying that when the legislator accepts the responsibility of providing the required aid or assistance to TMs, that legislator is obliged to keep an eye (“wachen”) on the correct (“gerecht”) application of the law and make sure that the pensions of the “Conterganstiftung” continue to correspond to such a level that Leviathan can be said to be living up to his accepted responsibility. (8)

That’s how the BVG, the German federal constitutional court, tried to hide its
acknowledgement that the thalidomide scandal had been caused by Leviathan.

That’s not enough, of course.

To repeat: The “Bundestag”, the lower house of the German parliament, on 25 April 2013 UNANIMOUSLY adopted a Bill whose motivation says that guv’mint did not commit any improper act in the thalidomide scandal which it, guv’mint, caused.

To insist: There is no legal basis – in the Conterganstiftung Act – for said Stiftung to be providing benefits (“Leistungen”) worldwide to thalidomiders.

(1)
In an 28 October 2014 opinion in El Diario Córdoba under the title “Monstruos verdaderos” (Real Monsters), Emma Riverola draws attention to the fact that thalidomide is known as a “teratogen”
(“terato-” +? “-gen”, “terato-” from Ancient Greek “teras”, “monster”, “gen-” root of Latin “genesis”, “birth”, any agent or substance which can cause malformation of an embryo or birth defects).

Riverola argues that “teras” can also be translated as “prodigy” and she concludes:

which Google translates as:
“Certainly, this definition is more appropriate to define these fighters. They were born with the body diminished by the mistakes and greed of a pharmaceutical. Now his age is also diminished by the (in) justice and greed.
“In this story, the real monsters are different.”

(4)
Herman Cousy,
“The Precautionary Principle: A Status Questionis”, in:
“The Geneva Papers on Risk and Insurance – Issues and Practice”,
1996, 158https://www.genevaassociation.org/media/231494/ga1996_gp21%2879%29-cousy.pdf
p. 163, footnote 28:
“28 Anyway, if the restrictive interpretation is upheld, the number of actual cases may turn out to he extremely rare. It will indeed not happen very often that the dangerous potentials of a product or activity are completely unknown. One often cites the Thalidomide (Contergan) case as an example of a development risk situation, although it appears that when Thalidomide was brought onto the German market, the product had been banned in France. Can it be readily upheld, under such circumstances, that the conditions for a “development risk” situation were fulfiled?”

(5)
Brazil Scotland Thalidomide and Thomas Aquinas
Posted by Ivo Cerckel on July 22nd, 2014http://bphouse.com/honest_money/2014/07/22/brazil-scotland-thalidomide-and-thomas-aquinas/
SNIP
Aristotle distinguishes four types of causes
– the “material” cause is that out of which something is made; it is the intrinsic constitutive element of something (e.g., the wood of the statue)
– the “formal” cause is the form or shape of something; it is what determines its essence to be what it is (the shape of the statue)
– the “efficient” cause is the being in act who brings about the change (the sculptor who makes the statue)
– the “final” cause is that for the sake of which the change takes place; it is what constitutes the perfection of the being (in the case of the statue, this is the purpose for which the statue was made).
(Aristotle, “Metaphysics”, Book Zeta (or VII), Chapter 8. line 1033a33)
It may be that thalidomide is the “efficient” cause,
the being in act who brings about the change
(Aristotle gives the example of the … sculptor who makes the … statue
Was this example devised 25 centuries ago with thalidomide monsters in mind?)
of the physical malformations of thalidomide monsters.
This does not make Chemie Grünenthal GmbH, now Grünenthal GmbH, the maker of thalidomide, the “primary” cause of thalidomide monsters and of the thalidomide scandal.
The adjective “efficient”, as in “efficient” cause, comes from Aristotle.
The adjective “primary”, as in “primary” cause, comes from the “Book of … Causes” (“Liber de Causis”).
Eight centuries ago, Thomas Aquinas, one of the most prominent interpreters of Aristotle, was the first to realise and to say in the “Preface” to his “Commentary” to the Book that the “De Causis” had been excerpted by one of the Arab philosophers from the work of a Neo-Platonist, the “Elements of Theology” of Proclus (412 AD – 485 AD), and thus could not be traced back to Aristotle as was generally thought.
Aquinas adds that the Arab philosophers who excerpted the “De Causis” from Proclus reserved the subject matter with which the Book deals for the mature part of one’s life.
The approach proposed by the Book might seem antithetical to Aquinas’s own Aristotelian conviction.
At the end of his short life and career Aquinas managed however in his “Commentary on “The Book of Causes”” to interpret the text as complementary rather than in opposition to what he had learned from Aristotle.
(Ralph McInerny, “Aquinas”, Cambridge UK, Oxford UK, Malden, MA: Polity, 2004, p. 19)
For Aquinas the “Liber de Causis” is an exercise in the culminating philosophical effort, wisdom, as theology.
(McInerny, op. cit., p. 37)
Every primary cause infuses its effect more powerfully than does a universal second cause,
“Omnis causa primaria plus est influens super causatum suum quam causa universalis secunda”,
says Proposition One of the “Liber de Causis”.
This means that when the alleged causes of a phenomenon stop existing or stop their effect, the real causes continue their effect.
(Adriaan Pattin, “De hiërarchie van het zijnde in het “Liber de Causis””, “Tijdschrift voor Filosofie”, 23 (1961), 130, p. 140)
Whereas the Aristotelian doctrine of efficient causality supposes that there be a “contact” between agent and patient, which contact can only be harmonised with extreme difficulty with the transcendence of divine action, the “De Causis” explains how the first Cause, while remaining separate, acts immanently in the inferior causes, supports those inferior causes, and links them to their effects.
(Alors que la doctrine aristotélicienne de la causalité efficiente suppose un “contact” entre agent et patient, ce qui s’accorde mal avec la transcendance de l’action divine,
le De Causis explique comment la Cause première, tout en restant séparée, agit de façon immanente dans les causes inferieures, les soutient, et les lie à leurs effets.
(Jean-Luc Solère, “Livre des Causes”, in : “Encyclopédie Philosophique Universelle”, t. III, Paris, Presses Universitaires de France, 1992, 676, p. 678)

(8)
Does this obligation to keep an eye on the correspondence between the level of assistance or aid and the fostering of the integration of TMs into society
(“Hilfe […] um ihre Eingliederung in die Gesellschaft zu fördern”, said SECTION 16 of the 1976 judgment)

mean that the funds necessary for this assistance could not be said aside, like what happened in the southern Low Countries, but not only there, in the last few years before 2010 (see the text to which note (6) of this post refers to), in what the Anglo-Saxons call a “trust”

because the amount necessary for the “trust” to fulfil its obligations could not be known?

Syed Kamall, UK conservative MEP, said on 31 October 2014. that he opposes the rule of law.

Michael McCann, UK labour MP, on 31 October 2014, and Sir Robert Smith, UK liberal democrat MP, on 04 November 2014, said that they refuse to grasp that thalidomide had been tested and that France therefore banned it.
Smith did moreover “extraordinarily” admit on that 04 November 2014 that the dropping of the criminal case against the maker of thalidomide resulted in concealment of evidence. Evidence of what, isn’t it?

Fortunately, there is still in the European parliament, Beatriz Becerra, MEP from Spain, in the ALDE, the Alliance of Liberals and Democrats for Europe, fraction led by Guy Verhofstadt.

Tension between the supporters and opponents of European integration.

Tension between the area of freedom of the individual and the requirements of the order imposed by way of straitjacket by the welfare state.

Tension between those who look only at the German behaviour after the thalidomide scandal and those who look also at the UK behaviour before and during the scandal.

ANTI-EXECUTIVE SUMMARY

When thalidomide was brought onto the West-German market, the product had been banned in France and remained banned there.
Later, the product was, while still being banned in France, brought onto the British market.

When thalidomide appeared on the British isles, the UK could have chosen between two possible courses of action.

Either, it could follow the French example and ban the drug,
Or, it could follow the West-German example and refrain from doing anything against this marketing of the product on the isles.

The UK chose the latter course of action.

Half a century later, some UK politicians are complaining to Germany that the UK followed the West-German example.

Syed Kamall wants Germany, not the UK, to compensate the UK thalidomiders.
His only argument is that “we are knowing what we now know”.
This is an argument for the UK to compensate the UK thalidomiders.

If the UK does not compensate the UK thalidomiders, the EU, not Germany, should do so.

Michael McCann says that the German Leviathan’s inexplicable decision to end the criminal case against Grünenthal was itself a criminal act.
Sir Robert Smith adds that this decision resulted in concealment of evidence from parents in the UK and lower court settlements for effected families.

In the 1970 criminal case against Grünenthal, the office of the West-German public attorney was arguing that thalidomide had not been tested. The case was dropped by that office because there was, in that office’s eyes, lack of public interest in the public finding out, through Grünenthal’s defence, that thalidomide had been tested and indeed banned in France before it was ever marketed, that is, before it was marketed in West-Germany.

If, when agreeing on the sidelines of the case on compensation with the parents of some thalidomiders, Grünenthal had contested its liability, vis-à-vis the parents, this would have brought into the open the reasons why the office of the German public attorney dropped the 1970 criminal case against Grünenthal, that is, it would have brought into the open that in the prosecution’s eyes, there was lack of public interest in the public finding out that thalidomide had been tested before it was ever marketed.

Grünenthal did that in order to protect the West-German Leviathan.

Why did the prosecution fear the truth about the real culprit in the thalidomide scandal being displayed in the open?

Good question, isn’t it?

Sir Robert Smith “extraordinarily” said that the termination of the criminal trail against Grünenthal resulted in concealment of evidence?
He probably didn’t realise that this concealment also concerns the real culprit in the thalidomide scandal – on the British isles –, Her Majesty’s guv’mint.
The only way for Grünenthal to defend itself in that trial would have been to draw the court’s – the jury’s? – attention to the real culprit in the scandal – in West-Germany – the West-German Leviathan.

END OF ANTI-EXECUTIVE SUMMARY

1.
The primary cause – as opposed to the efficient cause, the tablet, (1) – of the thalidomide scandal is the fact that after the French Leviathan had banned thalidomide, other Leviathans – such as the UK of NI-and-GB – did not prevent the product being brought onto “their” markets nor did they immediately order the withdrawal of thalidomide from “their” markets, once the product appeared there after the French ban.

Let’s start with some essentials of correct thinking or correct reasoning.

Every reasoning process involves a number of previously known truths. These truths are called the “premises”, when taken separately, and the “antecedent” when taken as a whole.
The reasoning process also involves the knowledge of a new truth (the “conclusion” or “consequent”) which is inferred from the premises. (2)

The impossibility of being either true or false is the essential note of logical opposition. (3)

Contradictory opposition is the opposition of a pair of propositions so related to one another that they cannot be either simultaneously true or simultaneously false. (4)

Through a correct deduction, one may infer from the contradictory proposition of the consequent to the contradictory proposition of the antecedent. (5)

Now that some essentials of correct thinking or correct reasoning have been refreshed in our minds, let’s start with the tabloids.
(Wow, page-three girl! – Or did she die?).

Legal tabloids tell us that thalidomide is an example of the development-risk defence which allows producers to escape liability if they prove that the state of scientific and technical knowledge at the time when they put the product into circulation was not such as to enable the existence of a defect to be discovered, as defined at present “a contrario” (“argument based on the contrary” – denotes any proposition that is argued to be correct because it is not disproven by a certain case, says Wikipedia) in article 15(1)(b) of the 1985 EEC Product Liability Directive, formally Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products.

Dr. Herman Cousy, professor now-emeritus from the law department of the K.U. Leuven, reports in note 28 of his 1996 paper “The Precautionary Principle: A Status Questionis” published in the “Geneva Papers on Risk and Insurance – Issues and Practice”, also available on the website of the “Geneva Association”, l’“Association Internationale pour l’Etude de l’Economie de l’Assurance”, the leading international think tank of the insurance industry, that:
“One often cites the Thalidomide (Contergan) case as an example of a development risk situation, although it appears that when thalidomide was brought onto the German market, the product had been banned in France.”

And Professor Cousy goes on to ask in the note:
“Can it be readily upheld, under such circumstances, that the conditions for a “development risk” situation were fulfiled?” (6)

The Sunday Times added in an 08 February 2009 article “Thalidomide ‘was created by the Nazis’” that the drug may have been developed as an antidote to nerve gas and that the manufacturer of thalidomide, Chemie Grünenthal GmbH, now known as Grünenthal GmbH, in Stolberg, Aachen, hereafter Grünenthal, “apparently purchased the trade name of the drug – Contergan – and therefore probably the substance itself, from a French firm, Rhône-Poulenc, which was under Nazi control during the war years.” (7)

Thalidomide was developed in France and banned there before it was licensed anywhere.

Got it?

This demonstrates that the Leviathans – such as the UK of NI-and-GB – which did not prevent thalidomide being brought onto “their” markets nor immediately ordered the withdrawal of thalidomide from “their” markets, once the product appeared there after the French ban, are the primary cause of the thalidomide scandal.

Indeed, I submit that the quoted article 15(1}(b) of the 1985 EEC Product Liability Directive can be applied “mutatis mutandis” (by changing what has to be changed) to the Leviathans which did not prevent the product being brought onto “their” markets nor immediately ordered the withdrawal of thalidomide from “their” markets, once the product appeared there after the French ban.

2.
Syed Kamall is a member of what should be, according to its name, the “European parliament”, the legislative branch of the EU Leviathan, member “emanating” from the sheeple of the UK of NI-and-GB where he is a member of the conservative party. He apparently lives in New Malden, Surrey, UK of NI-and-GB.

Here’s what Kamall wrote to the editor of The Daily Telegraph which the said newspaper, the mouthpiece of Kamall’s conservative party, published on 31 October 2014:

” [TITLE] It’s time to secure justice for Thalidomide victims

” [SUBTITLE 1] More than half a century after the Thalidomide scandal, European governments still aren’t doing enough to make amends

” [SUBSTITLE 2] Launched as a drug for treating morning sickness, thalidomide unexpectedly gave rise to severe abnormalities in children

“[TEXT UNDER PICTURE OF TABLETS] Justice: Grünenthal, a German pharmaceutical company, produced Thalidomide

” SIR – The Thalidomide scandal almost six decades ago continues to have a serious impact on thousands of people who were born severely disabled. Independent reports show that over the past 10 to 15 years, many European Thalidomide survivors have seen their health decline, experiencing complex and continuing health problems.

” Several EU countries have still not put in place a formal compensation scheme, while in others the compensation available is not sufficient to meet victims’ health and independent living costs. “At the time of the original legal action, a lack of clear evidence prevented lawyers from making the case for a just settlement. This was particularly the case in Germany.

” Knowing what we now know, surely the German government has an obligation to meet the needs of the few remaining European Thalidomide survivors?

” German ministers should meet representatives of those survivors, with a view to sympathetic consideration of the cases of victims in Denmark, Finland, Italy, Spain, Sweden and Britain.

” Syed Kamall MEP (Con)
” New Malden, Surrey ”

3.
Kamall seems to agree with my submission in earlier blog posts that article 15(1)(b) of the 1985 EEC Product Liability Directive can be applied “mutatis mutandis” (by changing what has to be changed) to the Leviathans which did not prevent the product being brought onto “their” markets nor immediately ordered the withdrawal of thalidomide from “their” markets, once the product appeared there after the French ban.

Why then does Kamall want Germany, not the UK of NI-and-GB, to compensate the UK thalidomiders?

Here’s the only argument the politician has or the only reasoning he is able to perform:
“Knowing what we now know, “surely” the German government has an obligation to meet the needs of the few remaining European Thalidomide survivors.”

Note the “surely” in the argument or reasoning.

Sorry Mr Kamall, most honourable member of the European parliament,
what we now, that is, since 1996
when Professor Cousy published his quoted article, know “for sure” is that
after the French Leviathan had banned the product,
the UK of NI-and-GB did not prevent thalidomide from reaching the isles
nor did it order the immediate withdrawal of the product from the isles once it appeared there.

But like all politicians, Kamall is a mystic failing to elaborate on two essential parts of his reasoning or argument.

One, Kamall does not elaborate what is the antecedent of his argument or reasoning. He only refers to “what we now know” without elaborating on what it is that “we now know”.

Two, as he does not elaborate what is the antecedent of his argument or reasoning, he cannot elaborate on how the consequent follows from this antecedent. He can only use the mystic’s “surely” to link the unexpressed (unverbalised – my spell checker doesn’t like this … verb -, that is, not put into words, “omitted” will I say in section 7) antecedent to the so-called “consequent”.

This means that if the premises are false, the conclusion can be either true or false. (8)

Section 7 of this blog post will argue that Michael McCann, labour MP, that is, member of the labour party and of the lower house, the house of commons, of the parliament of the UK of NI-and-GB, in his 31 October 2014 blog post “Michael McCann MP Demands Thalidomide Justice” could have given the arguments which Kamall, MEP, failed to give. The section will immediately refute McCann’s arguments.

The section will also happily expand, or rather really explain while being very happy, Sir Robert Smith, member of the UK of NI-and-GB liberal democrat party and member of the house of commons, ’s “extraordinary” admission on 04 November 2014 that the dropping of the case resulted in concealment of evidence. Evidence of what, isn’t it?

What Kamall also knows, perhaps even “surely” knows, is that thalidomide first appeared on the West-German market in 1957, that is the year that the original founding treaty of an international organisation was signed at Rome, Italy, and that that organisation was called the … European Economic Community.

A coincidence?
Why did the EEC legislator, the EEC council, then wait three decades to adopt its 1985 product-liability directive?
Why did that legislator wait so long to make European law become the corner stone (“la pièce maîtresse”) of national legislations concerning consumers? (Jean-Sylvestre Bergé and Sophie Robin-Olivier, “Introduction au droit européen”, Presses Universitaires de France, 2008, 1st ed., section 377)
Was that not in order not to make it too obvious that thalidomide was necessary to achieve this?
Was that not in order to hide this co-incidence?

If the UK of NI-and-GB does not compensate the UK thalidomiders, the EU, not Germany, should do so.

4.
It would seem that Beatriz Becerra, Spanish MEP of the ALDE, the Alliance of Liberals and Democrats for Europe, fraction of my anarcho-capitalist hero 35 years ago, Guy Verhofstadt, now leader of the ALDE fraction in the European parliament, has better ideas than the conservative party of Kamall.

On 30 October 2014, Ms Becerra raised the issue of unequal treatment of thalidomide monsters by the different EU member states. (9)

Kamall is only interested in the “sympathetic” [sic] consideration of the cases of victims in the UK of NI-and-GB, Denmark, Finland, Italy, Spain and Sweden. (see section 2 of this blog post)

I suppose that by “sympathetic consideration” of some cases, Kamall means that the conclusions in these cases should, like in his argument or reasoning, “surely” follow from the unexpressed antecedent.

My work is done, be it that I am trying to draft a post attempting to do three things.

One, to answer to the 24 october 2014 question of the Spanish thalidomiders
“¿Quién dirige la fundación alemana Contergan, Grünenthal o el Estado alemán?”
Who manages the German Contergan Foundation, Grünenthal or the German federal state? (11)

Two, to explain what Juan Antonio Megas meant on 28 October 2014 in an “From my Fishbowl” (“Desde mi pecera”) column under the title “Stop and think” (” Párate a pensar”) in La Opinión de Murcia, when he said that:
“Tal vez sea una invencible razón económica y legal la que impide que el Estado indemnice a la víctimas de la Talidomida”,
Maybe there is some reason of higher economic and social order which prevents the state to compensate the thalidomide monsters. (12)

Three, to explain with two judgments of the German federal constitutional court, the “Bundesverfassungsgericht”, hereafter BVG, and some pieces of German legislation why the Conterganstiftung will NEVER compensate Spanish thalidomide monsters, contrary to what Grünenthal was arguing in court and reiterated after the 22 October 2014 judgment of the Madrid Provincial Court, overruling the 20 November 2013 judgment of the Madrid Judge of First Instance, who (the latter) had ordered Grünenthal to pay, to the victims as recognised by Spain’s Health Ministry, 20’000 euro for each percentage point of disability of the victims.
I explained the Madrid procedure in my 23 October 2014 post “Historical Criticism, Thalidomide, Statutes of Limitations and Prescription – Update 1.0” on this blog. (13)

My work is done.

Yours is cut out, Guy!

6.
On 31 October 2014 at 11h36 GMT+1, Guy Verhofstadt wrote the following tweet:

After starting with the prediction that the new European parliament will be rowdier, with more heated debates as TENSIONS rise between clashing supporters and haters of European integration, Verhofstadt went on in the article to “inter alia” (among other things) recognise that the EU is not yet a fully-developed polity and to argue that Europe needs to show a human face, that is, that it must show that it is more than a purely economic or monetary union, but also a political and social union that shares, and is prepared to defend, commonly-held fundamental values of freedom, non-discrimination and respect for the RULE OF LAW. As the guardian of the treaties and acting through a commissioner with special responsibility for upholding fundamental rights, the commission, with small “c” in the article, is the most impartial body to do this, concludes Verhofstadt.

Can the contradiction between the approach of Ms Becerra who supports thalidomide monsters from all EU member states and the approach of Mr Kamall who is only interested in the “sympathetic” [sic] consideration of the cases of victims in the UK of NI-and-GB, Denmark, Finland, Italy, Spain, and Sweden (see section 2 of this blog post), be interpreted as a tension between supporters and haters of European integration?

In my next post I should discuss judgment BVerfGE 42, 263 of 08 July 1976 of the BVG of which I find the text on a website with a Swiss addresshttp://www.servat.unibe.ch/dfr/bv042263.html
which also speaks about an unbridgeable tension.

Section 120 of that judgment says that there is an unbridgeable “TENSION” (eine “unaufhebbaren Spannungslage”) between
the area of freedom of the individual (der “Freiheitsraum des Einzelnen”)
and the requirements of the order imposed by way of straitjacket by the welfare state (die “Anforderungen der sozialstaatlichen Ordnung”)
and that this requires the supersession of private autonomy to settle claims resulting from torts.

Kamall also wants to supersede the Rule of Law for all, by or with the “sympathetic” treatment of the cases of some only of the thalidomide monsters, depending on the place where they were born.

Yes, Kamall opposes the Rule of Law. He opposes the Rechtsstaat.

Yes, Kamall hates this characteristic of European integration.

Yes, the contradiction between the approach of Ms Becerra who supports thalidomide monsters from all EU member states and the approach of Mr Kamall who is only interested in the monsters from some members states can be interpreted as a tension between supporters and haters of European integration.

7.
Tension between the supporters and opponents of European integration.
Tension between the area of freedom of the individual and the requirements of the order imposed by way of straitjacket by the welfare state.

Michael McCann, member of the UK of NI-and-GB labour party and of the lower house, the house of commons, of the parliament of the UK of NI-and-GB, posted on 31 October 2014 an article “Michael McCann MP Demands Thalidomide Justice” on his website arguing, as the title says, that he wants justice for thalidomide monsters.

He correctly says that the German Leviathan, not Grünenthal, is the culprit and that the case is a scandal, not a catastrophe.

He only does not understand the real scandal of the West-German Leviathan not having done anything, before and while thalidomide was being marketed on “its” territory, against a drug which the Leviathan’s French neighbour had banned for an obvious reason.

I repeat,
the real West-German and UK of NI-and-GB thalidomide scandal is that the Leviathans instituted on those territories, c.q., isles, have not done anything against a drug that had been banned by an “ally” while the drug was being marketed on the West-German territory, c.q., on the British isles.

McCann does not grasp this and merely says that the German Leviathan, a supposed ally [sic – in and against what?], has consistently

[that is, consistently AFTER,
that is, NOT BEFORE NOR DURING,
the thalidomide scandal]

displayed behaviour more in common with an organised crime syndicate than that of a “sovereign” [sic] state
[Ivo: what’s the difference between Leviathan and such a syndicate, anyway?]
and “believes” that the German Leviathan’s inexplicable decision to end the case against Grünenthal was itself a criminal act and that he has have written to [German chancellor] Dr Merkel […] to demand that she acknowledges this and … “does “something” about it”. (14)

All these allegations of McCann which I quoted after “He merely says that […]” concern the behaviour of the West-German Leviathan AFTER the drug had been withdrawn from sale on the West-German territory,
NOT the behaviour of the said monster
(“teratos” in Greek, isn’t it,
ergo “teratogenic”, as in thalidomide being a teratogenic, monster-creating, drug)
BEFORE and DURING the thalidomide scandal when the monster could have followed the French example – at any moment.

Likewise, “our” three UK of NI-and-GB politicians are not interested in the behaviour of their insular state before and during the thalidomide scandal – but only in the behaviour of West-Germany after the scandal.

Sir Robert Smith, member of the UK of NI-and-GB liberal democrat party and member of the house of commons, “extraordinarily” added on 04 November 2014, that this decision to end the criminal case against Grünenthal resulted in concealment of evidence from parents in the UK and lower court settlements for effected families. (15)

The right honourable (or whatever may be the correct adjective for this gentleman, a UK of NI-and-GB MP) gentleman forgets that if the case had proceeded, the public would have found out, through Grünenthal’s defence, that thalidomide had been tested and indeed banned in France before it was ever marketed, that is, before it was marketed in West-Germany, “a fortiori” – an “a fortiori” argument is an “argument from a yet stronger reason”, says Wikipedia – before it was marketed on the British isles.

In that way, the public would have found out that when thalidomide appeared on the British isles, the UK of NI-and-GB could have chosen between two possible courses of action.

Either, the UK of NI-and-GB could follow the French example and ban the drug,
Or, it could follow the West-German example and refrain from doing anything against this marketing of the product on the isles.

The said insular state chose the latter course of action.

Half a century later, Kamall, McCann and Smith are complaining to Germany that they, the insular state, did not follow the French example.

Maybe this is the explanation which Kamall omitted.
Kamall’s only argument was that
“Knowing what we now know, “surely” the German government has an obligation to meet the needs of the few remaining European Thalidomide survivors.”
As I said, what we now, that is, since 1996
when Professor Cousy published his quoted article, know “for sure” is that
after the French Leviathan had banned the product,
the UK of NI-and-GB did not prevent thalidomide from reaching the isles
nor did it order the immediate withdrawal of the product from the isles once it appeared there.
And I continued by saying that like all politicians, Kamall is a mystic failing to elaborate on two essential parts of his reasoning or argument.

But let me now refute McCann’s argument, which could be the argument which Kamall omitted or left unexpressed.
By refuting McCann’s argument, I would then by the same token also be refuting Kamall’s unexpressed argument.

The argument says that the German Leviathan’s inexplicable decision to end the case against Grünenthal was itself a criminal act.

In his “The History of Thalidomide”, Dr Widukund Lenz, a paediatrician and human geneticist from Hamburg who on 25 November 1961 advised Grünenthal by telephone that he suspected thalidomide of causing birth defects (16), indicates
that the suit was started by the public prosecutor against seven men of Grünenthal,
that the proceedings or hearings in court started on 27 May 1968,
that the prosecution’s case was that Grünenthal had put on sale a drug which caused an unacceptable degree of bodily harm without having tested it properly, and that Grünenthal had failed to react to information on side effects in due time, and instead had tried to suppress information. (17)

As Professor Cousy indicated, the drug had been tested and France therefore had banned the drug.

On 18 December 1970, the 283th day of the court proceedings or hearings, the case was dropped by the prosecution not for an inexplicable reason, as McCann alleges, but because of minor guilt of the accused and because of lack public interest, says wochenblatt.de. (18)

This is the explanation which McCann cannot find.

In the 1970 criminal case against Grünenthal, the office of the West-German public attorney was arguing that thalidomide had not been tested. The case was dropped by that office because there was, in that office’s eyes, lack of public interest in the public finding out, through Grünenthal’s defence, that thalidomide had been tested and indeed banned in France before it was ever marketed, that is, before it was marketed in West-Germany.

I repeat:
In the 1970 criminal case against Grünenthal, the office of the West-German public attorney was arguing that thalidomide had not been tested. The case was dropped by that office because there was, in that office’s eyes, lack of public interest in the public finding out, through Grünenthal’s defence, that thalidomide had been tested and indeed banned in France before it was ever marketed, that is, before it was marketed in West-Germany.

Is Jacques H. Herbots listening?

Are the then-proponents of the 1985 EEC product-liability direction still alive and also listening?

Once the reason why the prosecution dropped the 1970 criminal case against Grünenthal has become clear, the rest of the story should become clear in my next post.

I quoted already an excerpt from section 120 of the 08 July 1976 BVG judgment which says that there is an unbridgeable TENSION (eine “unaufhebbaren Spannungslage”) between the area of freedom of the individual and the requirements of the order imposed by way of straitjacket by the welfare state.

After the thalidomide scandal – apparently after the dropping of the criminal case to which, if memory (19) serves me well, the 08 July 1976 BVG judgment does not refer – the West-German parents of some thalidomide monsters reached agreement with Grünenthal on some compensation.

That’s what the RULE OF LAW provides: When one individual is injured by another (or by another’s product), the compensation of the former takes the form of compensation by the latter, except if the latter can convince the former, or the courts, that he can invoke an excuse. And if the parties can reach an agreement on this compensation, then the bureaucrats of the courts and of guv’mint don’t have to intervene.

All that happened before the Conterganstiftung was set up in 1971.

In order to exculpate both Grünenthal, which is indeed innocent in the thalidomide scandal (see Cousy), and itself, the West-German Leviathan, who is not innocent at all, in the thalidomide scandal, realised that the best way to obscure its own liability was to participate in the compensation of thalidomide monsters, or rather that in order to achieve that objective, it also had to carry the burden of the compensation, no not the burden of compensation of thalidomide monsters, but the burden of providing effective help to speed up the integration of thalidomide monsters into society (“Hilfe […] um ihre Eingliederung in die Gesellschaft zu fördern”), says section 16 of 1976 BVG judgment.

Is Jacques H. Herbots still listening?

By now, the then-proponents of the 1985 EEC product-liability directive must all be dead.

By exculpating itself and Grünenthal, the West-German Leviathan could thank Grünenthal for accepting not to point the finger at Leviathan when discussing the liability for the scandal.

Grünenthal accepted not contesting that it had the sole liability for the scandal. (Is this what is called in the USofA the argument or rather the reply, defence or admission of guilt of “nolo contendere”, which is Latin for “I do not want to contest”?)

Just like Grünenthal did not want to contest its liability vis-à-vis the parents of some West-German thalidomide monsters with whom (the parents) it (Grünenthal) had reached agreement on some compensation.

Grünenthal did that in order to protect the West-German Leviathan.

Why did the prosecution fear the truth about the real culprit in the thalidomide scandal being displayed in the open?

Good question, isn’t it?

Sir Robert Smith “extraordinarily” said that the termination of the criminal trial against Grünenthal resulted in concealment of evidence?
He probably didn’t realise that this concealment also concerns the real culprit in the thalidomide scandal – on the British isles –, Her Majesty’s guv’mint.
The only way for Grünenthal to defend itself in that trial would have been to draw the court’s – the jury’s? – attention to the real culprit in the scandal – in Germany – the German Leviathan.

By now, even Jacques H. Herbots must be dead.

It is because
there was, in the eyes of the prosecution, a lack of public interest in the public finding out that thalidomide had been tested and indeed banned in France before it was ever marketed, that is, before it was marketed in West-Germany,
that by an Act of 19 December 1971 the Conterganstiftung was set up.

The starting capital of the said Stiftung was provided jointly by the West-German Leviathan and by Grünenthal.
The West-German Leviathan later provided more capital.
Grünenthal later VOLUNTARILY provided some more capital.

Most of the parents who had reached agreement with Grünenthal were not happy with this overruling by the West-German Leviathan of their agreements with Grünenthal and filed court cases.

That’s how the case arrived first in the lower courts and finally in 1976 at the BVG which had the opportunity to explain its 1976 judgment in a 2010 judgment.

These judgments, which, as far as I can remember (19, again), do not refer to the 1970 criminal case should be discussed in my next post.

The third thing I will examine in my next post is, as I said towards the end of section 5 of this post, whether the Conterganstiftung can provide benefits to thalidomide monsters who have no link to Germany.

As another or supplementary preview of that post, I can tell you, dear reader, the following:

Until 22 March 2009, the Conterganstiftung was providing benefits to the 2’700 thalidomiders living in Germany or born in West Germany, says the bill leading to the 23 March 2009 second revision of the Conterganstiftung Act,.
This 23 March 2009 second revision of the Conterganstiftung Act would have extended those benefits to thalidomiders not living or born in Germany, although the act does not say so explicitly – or implicitly. I am probably totally unqualified or my German is too bad, but I am unable to find in the 2009 bill that it is extraterritorially applicable to thalidomide monsters who have no link to Germany.
As of today, or rather as of 12 March 2013, date of the bill leading to the third revision of the Conterganstiftung Act, how many monsters are, or rather were, receiving benefits from the Stiftung?

Tension between the supporters and opponents of European integration.

Tension between the area of freedom of the individual and the requirements of the order imposed by way of straitjacket by the welfare state.

Tension between those who look only at the German behaviour after the thalidomide scandal and those who look also at the UK behaviour before and during the scandal.

Aristotle distinguishes four types of causes
– the “material” cause is that out of which something is made; it is the intrinsic constitutive element of something (e.g., the wood of the statue)
– the “formal” cause is the form or shape of something; it is what determines its essence to be what it is (the shape of the statue)
– the “efficient” cause is the being in act who brings about the change (the sculptor who makes the statue)
– the “final” cause is that for the sake of which the change takes place; it is what constitutes the perfection of the being (in the case of the statue, this is the purpose for which the statue was made).
(Aristotle, “Metaphysics”, Book Zeta (or VII), Chapter 8. line 1033a33)

It may be that thalidomide is the “efficient” cause,
the being in act who brings about the change
(Aristotle gives the example of the … sculptor who makes the … statue
Was this example devised 25 centuries ago with thalidomide monsters in mind?)
of the physical malformations of thalidomide monsters.

This does not make Chemie Grünenthal GmbH, now Grünenthal GmbH, the maker of thalidomide, the “primary” cause of thalidomide monsters and of the thalidomide scandal.

The adjective “efficient”, as in “efficient” cause, comes from Aristotle.

The adjective “primary”, as in “primary” cause, comes from the “Book of … Causes” (“Liber de Causis”).

Eight centuries ago, Thomas Aquinas, one of the most prominent interpreters of Aristotle, was the first to realise and to say in the “Preface” to his “Commentary” to the Book that the “De Causis” had been excerpted by one of the Arab philosophers from the work of a Neo-Platonist, the “Elements of Theology” of Proclus (412 AD – 485 AD), and thus could not be traced back to Aristotle as was generally thought.

Aquinas adds that the Arab philosophers who excerpted the “De Causis” from Proclus reserved the subject matter with which the Book deals for the mature part of one’s life.

The approach proposed by the Book might seem antithetical to Aquinas’s own Aristotelian conviction.

At the end of his short life and career Aquinas managed however in his “Commentary on “The Book of Causes”” to interpret the text as complementary rather than in opposition to what he had learned from Aristotle.
(Ralph McInerny, “Aquinas”, Cambridge UK, Oxford UK, Malden, MA: Polity, 2004, p. 19)

For Aquinas the “Liber de Causis” is an exercise in the culminating philosophical effort, wisdom, as theology.
(McInerny, op. cit., p. 37)

(6)
Herman Cousy,
“The Precautionary Principle: A Status Questionis”, in:
“The Geneva Papers on Risk and Insurance – Issues and Practice”,
1996, 158https://www.genevaassociation.org/media/231494/ga1996_gp21%2879%29-cousy.pdf
p. 163, footnote 28:
“28 Anyway, if the restrictive interpretation is upheld, the number of actual cases may turn out to he extremely rare. It will indeed not happen very often that the dangerous potentials of a product or activity are completely unknown. One often cites the Thalidomide (Contergan) case as an example of a development risk situation, although it appears that when Thalidomide was brought onto the German market, the product had been banned in France. Can it be readily upheld, under such circumstances, that the conditions for a “development risk” situation were fulfiled?”

UPyD meets with the Association of Victims of Thalidomide in Spain
October 30, 2014 |

MEP UPyD Beatriz Becerra has held meetings with various groups and associations in the development of their “constituency week.”

In certain weeks of the year (known as “green weeks”) MEPs working in their respective Member States. These are days that are exploited to UPyD accountable to the citizens and to establish contacts with various associations and groups in civil society.

Beatriz Becerra joins the Association of Victims of Thalidomide in Spain (Avite)
In this context MEP Beatriz Becerra met with the Association of Victims of Thalidomide in Spain (Avite). The contacts were already underway before the appointment, since the association take action raised in the European Parliament. Becerra, who made a special tracking everything related to the public health policy of the Union, has announced that it will promote and expedite the proceedings from the Petitions Committee (of which he is a member, as well as coordinator of the Group of the Alliance of Liberals and Democrats for Europe – ALDE). It is considering that the petition presented thalidomide victims from different Member States so I put it as a matter “of unequal treatment, as there are a number of injured parties get nothing. Time plays against them, because sufferers are over 50 years old and living conditions are getting worse. ”

There are wide disparities in the treatment of victims of thalidomide among Member States. In Spain, in fact, do not have any compensation, while in countries like Germany have a pension. UPyD and drove from the House of Representatives in the last term initiatives for a collective solution to this is put.

Among other issues, they are suggesting that such request is filed by victims of thalidomide in several countries. “You could raise a common question of unequal treatment, as there are a number of injured parties get nothing and also, in the case of Spain, has cornered them for years. Time plays against them, because sufferers are over 50 years old and living conditions are getting worse, “he noted.

On 20 November 2013, the Judge of First Instance number 90 of Madrid ordered the manufacturer of thalidomide, the private limited company now known now known as Grünenthal GmbH, known fifty years ago as Chemie Grünenthal GmbH. hereafter Grünenthal, to pay 20’000 euro for each percentage point of disability of the victims as recognised by Spain’s Health Ministry.
(Spanish Thalidomide Victims obtain Judgment against Innocent Party
Posted by Ivo Cerckel on November 22nd, 2013http://bphouse.com/honest_money/2013/11/22/spanish-thalidomide-victims-obtain-judgment-against-innocent-party-3/

The judge did not consider it necessary to inquire into the tort which Grünenthal would have committed.
No, Grünenthal produces an unsafe medicine, therefore it is liable for tort damages.
What tort? No reply.

In its 20 December 2013 appeal against this decision to Madrid’s Provincial Court, Grünenthal had three main arguments. One, the original plaintiffs do not prove that their malformations are due to thalidomide. Two, their claims are so old that “a valid judgment is impossible”. Three, the plaintiffs can obtain allowances from the German Thalidomide Foundation, Conterganstiftung.
(Grünenthal recurre la indemnización a los afectados por la talidomida en España
SMS News
20 de diciembre, 2013 10:41 AMhttp://www.ksmstv.com/2013/12/20/grunenthal-recurre-la-indemnizacion-a-los-afectados-por-la-talidomida-en-espana/
Grünenthal apeló el fallo judicial, emitido el 20 de noviembre, por considerar que AVITE no aportó “las pruebas imprescindibles” para justificar sus reclamaciones y no probó que las malformaciones estuvieran causadas por el producto distribuido por el esta farmacéutica.
El laboratorio alemán invocó el principio de prescripción de las acciones legales, al entender que, después de cincuenta años, “un juicio válido resulta imposible”.
El laboratorio resaltó que los afectados españoles con malformaciones atribuibles a un producto de talidomida distribuido porGrünenthal pueden solicitar ayudas a la Fundación Contergan.)
On Wednesday 22 October 2014, Madrid’s Provincial Court ruled that the claims of the original plaintiffs were prescribed, thereby overturning the condemnation of Grünenthal by the Judge of First Instance.
(German Firm Wins Appeal in Spain Thalidomide Case
MADRID — Oct 22, 2014, 10:54 AM EThttp://abcnews.go.com/Health/wireStory/german-firm-wins-appeal-spain-thalidomide-case-26367275
SNIP
Madrid’s provincial court said the statute of limitations for the plaintiffs’ case had expired.
+
Gruenenthal said in a statement the “the court confirms that the plaintiffs weren’t able to prove their claims and that fair proceedings aren’t possible after more than 50 years. ” It added that there existed “effective and established options for people harmed by products containing thalidomide to get financial support from Gruenenthal or its distributors. ”
UNSNIP
Ivo: the article is from Associated Press (AP), an American news agency, and is thus intended for an American audience and thus speaks of a “statute of limitations” instead of “prescription”.)

(14)
Michael McCann MP Demands Thalidomide Justice
Posted on October 31, 2014http://www.michaelmccann.org.uk/?s=thalidomide&submit=Gohttp://www.michaelmccann.org.uk/michael-mccann-mp-demands-thalidomide-justice/
SNIPS
Afterwards, Michael, MP for East Kilbride, Strathaven and Lesmahagow, said: “I want justice for Gerry!
“The German Government, a supposed ally, has consistently displayed behaviour more in common with an organised crime syndicate than that of a sovereign state.
+
“I believe the German Government’s inexplicable decision to end the case against Grunewald was itself a criminal act and I have written to Dr Merkel on Gerry’s behalf to demand that she acknowledges this and does something about it.”

(15)
MP calls on Germany to help Thalidomide survivors
4 November 2014https://www.pressandjournal.co.uk/fp/news/politics/westminster/390117/mp-calls-on-germany-to-help-thalidomide-survivors/
SNIPS
An MP has called on German Chancellor Angela Merkel to help compensate north-east survivors of the Thalidomide scandal.
Sir Robert Smith, who represents West Aberdeenshire and Kincardine, met Stonehaven resident Laura Beeton and her son Owen Thomson at a reception for survivors in Westminster.
+
The criminal trial of the German manufacturer Grunenthal was terminated in 1970, resulting in concealment of evidence from parents in the UK and lower court settlements for effected families.

(17)
The History of Thalidomide
by Dr. Widukind Lenz May 27, 1968,http://www.thalidomide.ca/history-of-thalidomide/
SNIP
The first accusations against Chemie Gruenenthal reached the public prosecutors office at the country court of Aachen by the end of 1961. By 1968 the bill of indictment comprising 972 pages was completed, based on some 500,000 documents. On May 27, 1968, a criminal law suit was started by the public prosecutor against seven men of Chemie Gruenenthal. The case was that they had put on sale a drug which caused an unacceptable degree of bodily harm without having tested it properly, and that they had failed to react to information on side effects in due time, and instead had tried to suppress information.

(19)
I analysed and discussed the 08 July 1976 BVG judgment and the 26 February 2010 BVG judgment in case 1541/09
IN ENGLISH
on the “Question Disputées” forum on le “Grand Portail Philosophie Saint Thomas Thomas” under this post:

The update details the procedural aspects of the Spanish and USofA court cases and draws attention to the fact that “tort” liability of public authorities requires the proof of a … tort – committed by the Enemy.

Updated on 25 October 2014 at 13h25 GMT+8

The truth about the thalidomide scandal is still being hidden from the public eye.
The veil on the truth has not yet been lifted – for the public eye.

Thalidomide is not case of product liability but of (tortuous) government liability for not guaranteeing public health, the tort being the intentional neglect of ordering the product to be withdrawn from “its” market, the intention being to present what is a case of guv’mint liability for the said negligence as a case of product liability.
Layers of cover-up or denial, which the “historical-critical method” has to clean up, are still preventing the disclosure of the thalidomide truth.

“Historical Criticism”, also known as the “historical-critical method” or “higher criticism”, is a branch of literary criticism that investigates the origins of ancient texts in order to understand “the world behind the text”, says Wikipedia.

“Tort” liability of public authorities requires the proof of a … tort (or negligence) – committed by the Enemy.
More research will have to be conducted, like that of Professor Cousy which I will mention in this post, before we can convince the public authorities known as the courts that the Enemy has indeed committed a tort half a century ago.

A Spanish and a USofA judgment, this month, denied thalidomide claims against the maker of thalidomide, not against the culprits for or of the thalidomide scandal (1), because the claims would not have been brought (in-)to court within the time allotted to bring them which would result in the claims being prescribed (in Spain), barred by a statute of limitations (in the USofA) or extinguished and thus barred from being instituted. Under Spanish law, the claims are then deemed “inadmissible”.

On 20 November 2013, the Judge of First Instance number 90 of Madrid ordered the manufacturer of thalidomide, Chemie Grünenthal GmbH, now known as Grünenthal GmbH, hereafter Grünenthal, to pay 20’000 euro for each percentage point of disability of the victims as recognised by Spain’s Health Ministry.

The judge did not consider it necessary to inquire into the tort which Grünenthal would have committed.
No, Grünenthal produces an unsafe medicine, therefore it is liable for tort damages.
What tort? No reply.

In its 20 December 2013 appeal against this decision to Madrid’s Provincial Court, Grünenthal had three main arguments. One, the original plaintiffs do not prove that their malformations are due to thalidomide. Two, their claims are so old that “a valid judgment is impossible”. Three, the plaintiffs can obtain allowances from the German Thalidomide Foundation, Conterganstiftung. (2)

On Wednesday 22 October 2014, Madrid’s Provincial Court ruled that the claims of the original plaintiffs were prescribed, thereby overturning the condemnation of Grünenthal by the Judge of First Instance. (3)

PENNSYLVANIA

On Thursday 16 October 2014 a Pennsylvania federal judge, Paul S. Diamond of the United States of A. District Court for the Eastern District of Pennsylvania, dismissed a suit by Edmund Andre who claimed that his birth defects were caused by thalidomide, which in the USofA is a product of GlaxoSmithKline LLC, hereafter GSK, finding that Andre’s suit against GSK is barred by the state’s two-year statute of limitations on personal injury suits. (4)

The plaintiff was among roughly a dozen plaintiffs who filed a personal injury suit in Philadelphia state court in October 2011. The defendants subsequently moved the case to federal court. The thalidomide cases were then consolidated in Diamond’s federal court. At least 10 of those plaintiffs have so far voluntarily dismissed their claim. (4 again)

GSK contended the claim was barred by a statute of limitations because the plaintiff’s birth defects occurred 50 years ago.
Andre countered that a statute of limitations shouldn’t apply to the suit, because he didn’t discover his injuries until recently, when new scientific and historical evidence pointed to thalidomide as the possible cause.
He claimed Grünenthal and companies that sold the drug in the USofA hid evidence of its distribution in the late 1950s and lied to the USofA Congress, all the while they knew or should have known about its potential risks. Companies that developed, manufactured, tested and distributed thalidomide were responsible for any babies born with defects as a result of exposure to thalidomide, according to the suit. (5)

Diamond said in his judgment that the time for Edmund Andre to bring a suit against the maker of thalidomide had long since passed, thereby rejecting Andre’s argument that the company’s initial cover-up of the drug’s effect on babies born to women who took it would extend the statute of limitations. (6)

As to the issue of the statute of limitations, Diamond applied Pennsylvania law, which has a two-year limit from the infliction of harm. The clock would have started running in 1957 for Andre, the judge said.
“The gravamen of plaintiff’s complaint is that defendants’ fraudulent concealment of both thalidomide’s extensive distribution in the United States and the drug’s dangerousness tolled the running of the two-year limitations clock, but the plaintiff failed to prove that claim.
“Andre knew as early as 1969 that his mother had taken thalidomide while she was pregnant with him and he made no significant effort until recently to investigate and bring a case”, Diamond said. (6 again)

Andrew was born in 1957. The judge says that when he had reached the ripe old age of 12, in 1969, he had to file the suit – without knowing whether anybody had committed a tort.

Yes, Andre was left with damage in 1957. But could Andre demonstrate in 1969 that this damage is due to a tort (or negligence) committed by anybody – say guv’mint?

COVER-UP

We, thalidomide monsters, were not present before our birth. We don’t know what “really” happened then.

We were born.

Again, we were not present at our births nor could we ascertain the truth about what cover-up or denial occurred during our childhood.

“How come I am missing limbs? ”
“Ah, this happens just like that – for no reason at all!”

Even though it is (also) a democracy, my understanding is that in a “Rechtsstaat”, where something like the “Rule of Law” exists, the Enemy, a.k.a (also known as) guv’mint, does what it has to do.

As good citizens of democracies, we supposed that the Enemy did what it had to do.

I was born in February 1962. It was only in the fall of 1982, that’s 20 years later, that I first heard of thalidomide, n’est-ce pas Jacques H. Herbots?

In the second half of the first decade of the 21st century, I found that on 30 April – 1 May 1960 at a Düsseldorf congress of neurologists, neurologist Dr. Ralf Voss warned that thalidomide attacked the nervous system of the mother. (7)

It is only in the last 12 or 18 months that I found the 1996 paper by Dr. Herman Cousy, professor emeritus from the law department of the K.U. Leuven, “The Precautionary Principle: A Status Questionis” published in the “Geneva Papers on Risk and Insurance – Issues and Practice”, also available on the website of the “Geneva Association”, l’”Association Internationale pour l’Etude de l’Economie de l’Assurance”, the leading international think tank of the insurance industry,

which started lifting the veil on the truth about the thalidomide scandal

by saying on p. 163, in note 28, that:
“One often cites the Thalidomide (Contergan) case as an example of a development risk situation, although it appears that when thalidomide was brought onto the German market, the product had been banned in France. Can it be readily upheld, under such circumstances, that the conditions for a development risk situation were fulfilled?”(8)

“Historical criticism” only investigates the origins of “ancient” texts in order to understand “the world behind the text”, said Wikipedia?

The Enemy knew – after the war – like his French colleague who therefore banned the product that there was a “slight” “problem” with thalidomide.

It is the Enemy, not Grünenthal, the maker of thalidomide, who “concealed” – to use Diamond’s words which he probably borrowed from the plaintiff – the dangerousness of the drug by not ordering the immediate withdrawal of the product from “its” territory.

This blogger therefore submits that the cover-up or denial, by all thalidomide “stories” of the past, except by the 1996 scholarly paper of Professor Cousy, of the sole liability of the Enemy for the scandal made it impossible for the (future – as of today) plaintiffs to bring their actions or claims earlier against the real culprit for the scandal.

SPAIN

“Statutes of limitations” are written laws passed by a legislative body in common-law systems – but the Spanish legal system is a civil-law system – to restrict the maximum time after an event that legal proceedings may be initiated, says Wikipedia.

In Québec which, says Wikipedia, continues to apply civil law toward civil private law matters, while the other [Canadian] provinces operate under common law, “prescription” is a way to gain or lose a right through the passage of time, the period of time varying according to the situation, says educaloi.qc.ca.

How can the claims against the Enemy who covered the truth up, or who covered up the truth, or denied the truth, have been prescribed?

How can the statute of limitations have started running before the veil, which still has not totally been lifted, although Professor Cousy gave a good starting-shot, will be lifted on the truth about the Enemy’s sole liability for the thalidomide scandal?

Or was thalidomide really created by the USofA Food and Drug Administration (FDA) director, Dr Frances Oldham Kelsey, to whom USofA president John F. Kennedy gave a Presidential award for having saved the USofA from thalidomide? (10)

And is that real cover-up?

Wait a moment, didn’t I mention a 16 October 2014 judgment of a Pennsylvania, which is a state of the … USofA, federal court in a case Andre vs. GSK?
How can there be a thalidomide victim in the USofA if Kelsey saved the country from thalidomide?

Oops, I also said that Professor Cousy gave a good starting- … shot? Sorry, that was not intended.

Layers of cover-up or denial, which the “historical-critical method” has to clean up, are still preventing the disclosure of the thalidomide truth.

That is why that method or “Historical Criticism” still has or rather already has its role to play in ascertaining the truth about the thalidomide scandal and “a fortiori” in assessing whether the actions or claims for thalidomide compensation – against the culprit, guv’mint, the Enemy – have been brought within the time allotted to bring them.

How can we give the facts to the judge, if we don’t know those facts – yet,
or rather if we cannot convince the courts of them – yet?

“Tort” liability of public authorities requires the proof of a … tort – committed by the Enemy.

As layers of cover-up or denial, which the “historical-critical method” has to clean up, are still preventing the disclosure of the thalidomide truth, more research like that of Professor Cousy will have to be conducted before we can convince the public authorities known as the courts that the Enemy has indeed committed a tort half a century ago.

The tort being the intentional neglect of ordering the product to be withdrawn from “its” market, the intention being to present what is a case of guv’mint liability for the said negligence as a case of product liability.

How can we give the facts before the veil on those facts with have been lifted – for the public eye?

(3)
German Firm Wins Appeal in Spain Thalidomide Case
MADRID — Oct 22, 2014, 10:54 AM EThttp://abcnews.go.com/Health/wireStory/german-firm-wins-appeal-spain-thalidomide-case-26367275
SNIP
Madrid’s provincial court said the statute of limitations for the plaintiffs’ case had expired.
+
Gruenenthal said in a statement the “the court confirms that the plaintiffs weren’t able to prove their claims and that fair proceedings aren’t possible after more than 50 years. ” It added that there existed “effective and established options for people harmed by products containing thalidomide to get financial support from Gruenenthal or its distributors. ”
UNSNIP

Ivo: the article is from Associated Press (AP), an American news agency, and is thus intended for an American audience and thus speaks of a “statute of limitations” instead of “prescription”.

(10)
Thalidomide – Dishonest Drug
Posted by Ivo Cerckel on April 6th, 2008http://bphouse.com/honest_money/2008/04/06/dishonest-drug/
SNIP
Thalidomide was definitely known in the year 1938 and [its] defects were noted in Phoenix, AZ (USA) in a medical journal that year. It was known as a cure for Hanson’s Disease and made by [Richardson]-Merrill Co. in [Cincinnati], OH (USA). I don’t know what action was taken, but a young female doctor named Frances Oldham Kersey (or Kelsey) recognized its dangers. Theodore, Princeton, WV/USA
(reaction under From The Times April 4, 2008 Thalidomide: 50 years on victims unite to seek more compensation Nigel Hawkes, Health Editorhttp://www.timesonline.co.uk/tol/news/uk/health/article3671815.ece )
Kelsey was the lady who in 1960 only joined the US of A Food and Drugs Administration (FDA).
Once there, she further delayed thalidomide’s approval (thalidomide was marketed – in West Germany – since 1957)
and was given a Presidential award by US of A president Kennedy for that delay.
Wikipedia says
that Kelsey is credited SINCE NINETEEN THIRTY-EIGHT with her interest in teratogens – that is, drugs that cause congenital malformations,
that 1938 was the date of the creation of the FDA,
and that Kelsey managed to be appointed there in 1960http://en.wikipedia.org/wiki/Frances_Oldham_Kelsey
Thalidomide was marketed since 1957.
Kelsey was only appointed in the FDA in 1960.
How can she get (all) the credit for having “saved” the US of A from it?

(8)Herman Cousy,“The Precautionary Principle: A Status Questionis”, in:“The Geneva Papers on Risk and Insurance – Issues and Practice”,1996, 158https://www.genevaassociation.org/media/231494/ga1996_gp21%2879%29-cousy.pdfp. 163, voetnoot 28UITREKSEL:“One often cites the Thalidomide (Contergan) case as an example of a development risk situation, although it appears that when thalidomide was brought onto the German market, the product had been banned in France.”“Can it be readily upheld, under such circumstances, that the conditions for a “development risk” situation were fulfilled? ”

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